Cortland v. Lewis County, 012021 WACA, 53282-4-II

Docket Nº53282-4-II
Opinion JudgeSutton, A.C.J.
Party NameBRIAN CORTLAND, BRIAN GREEN, and CHRISTOPHER HUPY, Appellants, v. LEWIS COUNTY, a municipal corporation, Respondent.
Judge PanelWe concur: GLASGOW, J., CRUSER, J.
Case DateJanuary 20, 2021
CourtCourt of Appeals of Washington

BRIAN CORTLAND, BRIAN GREEN, and CHRISTOPHER HUPY, Appellants,

v.

LEWIS COUNTY, a municipal corporation, Respondent.

No. 53282-4-II

Court of Appeals of Washington, Division 2

January 20, 2021

UNPUBLISHED OPINION

Sutton, A.C.J.

Brian Cortland, Brian Green, and Christopher Hupy ("Cortland") appeal the superior court's order awarding penalties following a Public Records Act (PRA)1 lawsuit against Lewis County.

Cortland argues that the superior court erred in applying Yousoiifian2 by (1) failing to apply the fourth aggravating factor and incorrectly applying the fifth mitigating factor, both regarding reasonableness; and (2) incorrectly applying the fifth aggravating factor regarding bad faith. Cortland also argues that he is entitled to an award of reasonable appellate attorney fees and costs.

We hold that the superior court did not abuse its discretion by applying the Yousoufian mitigating and aggravating factors as it did, and we deny Cortland's request for attorney fees and costs on appeal. We affirm the superior court's order on PRA penalties.

FACTS

Cortland made three PRA requests to Lewis County for three separate transcripts of court hearings Lewis County had obtained during ongoing litigation to which Lewis County was a party. Lewis County timely responded and denied each request, claiming that the transcripts were exempt from disclosure under RCW 42.56.290 because Cortland could not obtain copies of the transcripts that Lewis County had paid for in civil litigation.

Cortland sued and claimed that these were public records that Lewis County improperly withheld. The superior court agreed. "Although custom and fairness may require court reporters to be paid for copies of transcripts, this custom is not embodied as an exemption to the Public Records Act. Custom and fairness are not reasons to restrict access to public records under the Public Records Act." Clerk's Papers (CP) at 39. The court found that RCW 42.56.290 was "not an appropriate exemption to avoid disclosure of the [three] transcripts requested." CP at 38. Therefore, the court found that Lewis County violated the PRA.

In his brief for penalties, Cortland argued that Lewis County acted unreasonably and in bad faith, and thus, the superior court should apply the aggravating factors from Yousoufian. CP at 55-81. Cortland requested a penalty of $10 per page per day, or $349, 970 per requester, resulting in a total penalty award of $1, 049, 910, noting other cases where Lewis County violated the PRA. Lewis County argued that it reasonably, but mistakenly, claimed an exemption and otherwise strictly complied with the PRA in good faith, and the court should apply that as a mitigating factor. Therefore, it argued the court should award a penalty of $1 per day per record and treat each requested transcript as one record, for a total penalty award of $1, 195 to be split amongst the three requestors.

The court found that Lewis County's claim of an exemption was "clear and intelligible, though legally wrong." CP at 133. The court did not "find evidence of dishonest, bad-faith, or intentionally illegal behavior by Lewis County, nor of animus against the Plaintiffs." CP at 133. The court considered four of the Yousoufian aggravating factors and three of the mitigating factors to be relevant, although it did not apply all these factors: 2.10. The [c]ourt considers these aggravating factors relevant:

2.10.1. Factor (5) . . . The [c]ourt does not find bad faith or intentional noncompliance by Lewis County, but this factor encompasses the full range of culpability. When deciding to claim an exemption that may not be justified, there is an element of recklessness. Lewis County's claimed exemption was intelligible, but cannot be considered reasonable because it was legally wrong.

2.10.2. Factor (7) . . . The availability or unavailability of court transcripts from government entities is an issue of foreseeable public importance because of the amount of litigation in which the government is involved.

2.10.3. Factor (8) . . . The requesters suffered no economic loss.

2.10.4. Factor (9) . .. The [c]ourt wishes to impose a penalty to direct Lewis County to think more carefully before claiming uncertain exemptions, which is a type of deterrence.

2.11. The [c]ourt considers these mitigating factors relevant:

2.11.1. Factor (2) . . . Lewis County promptly and intelligibly responded with its claimed, but wrong, exemption.

2.11.2. Factor (3) . . . The [c]ourt believes that Lewis County honestly believed its claim of exemption and otherwise strictly complied with the PRA's procedural requirements in good faith.

2.11.3. Factor (5) . . . The [c]ourt does not find Lewis County's noncompliance "reasonable." It cannot be reasonable because it was legally wrong.

CP at 134-35.

The superior court treated each transcript as one record, for a total of three records, referencing its broad discretion to determine the type of "record" to which the penalty applies. CP at 135. It also noted that "[t]he documents are conceptually unitary and there are not sufficient aggravating circumstances to justify a per-page penalty." CP at 135.

Based on this, the superior court set a $10 per transcript per day penalty, for a total of $11, 950 to be split amongst the three requestors as they choose.

Cortland appeals.

ANALYSIS3

I. Penalties Analysis

Cortland argues that the superior court erred by (1) failing to apply the fourth aggravating factor and incorrectly applying the fifth mitigating factor, both regarding reasonableness; and (2) incorrectly applying the fifth aggravating factor regarding bad faith. We hold that the superior court has broad discretion in setting a PRA penalty and did not abuse its discretion by applying the Yousoufian mitigating and aggravating factors as it did.

A. Legal Principles

"The PRA is a strongly worded mandate for broad disclosure of public records." Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 714, 261 P.3d 119 (2011). The PRA stands for the proposition that "'fiill access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.'" Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994) (quoting former RCW 42.17.010(11) (1975)). And when evaluating a claim within the framework of the PRA, a court must "take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience...

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