Yacobellis v. City of Bellingham

• Decision Date: 18 February 1992
• Docket Number: No. 27149-1-I,27149-1-I
• Citation: Yacobellis v. City of Bellingham, 825 P.2d 324, 64 Wn.App. 295 (Wash. App. 1992)
• Court: Washington Court of Appeals
• Parties: John YACOBELLIS, Appellant, v. The CITY OF BELLINGHAM, A Washington State Municipal Corporation, Respondent.

Page 295

64 Wn.App. 295

825 P.2d 324

John YACOBELLIS, Appellant, v.The CITY OF BELLINGHAM, A Washington State Municipal Corporation, Respondent.

No. 27149-1-I.

Court of Appeals of Washington Division 1.

Feb. 18, 1992.

Rolf Beckhusen, Bellingham, for appellant.

Richard Little, Asst. City Atty., Bellingham, for respondent.

PEKELIS, Judge.

John Yacobellis appeals an order determining the amount of a discretionary award in his favor pursuant to RCW 42.17.340(3) of the public disclosure act.Yacobellis contends that the trial court erred in granting him a $1 per-day statutory award.We reverse and remand.

I

This appeal arises from a remand by this court to superior court for a determination of costs and attorney fees, as well as an award under RCW 42.17.340(3).In the first appeal, Yacobellis v. Bellingham, 55 Wash.App. 706, 780 P.2d 272(1989), review denied, 114 Wash.2d 1002, 788 P.2d 1077(1990), this court determined that the trial court had erred in denying Yacobellis relief under the public disclosure act.

In brief, the facts were as follows: On February 4, 1988, Yacobellis filed a complaint under the public disclosure act, seeking access to certain records relating to a golf survey conducted by the City of Bellingham.Yacobellis sought disclosure of all information concerning the golf survey, along with costs and attorney fees, and $25 per day for each day that he was denied access to the records he requested.The trial court ruled in favor of the City, determining that the records requested by Yacobellis were not public records within the meaning of the public disclosure act.Yacobellis, 55 Wash.App. at 709, 780 P.2d 272.The trial court also determined that the City's destruction of the records rendered moot the issue of their production.Accordingly, the court granted summary judgment in favor of the City.Yacobellis, 55 Wash.App. at 709, 780 P.2d 272.

On appeal, this court reversed, holding that the records requested by Yacobellis constituted public records within the meaning of the act and were not exempt from public disclosure under any of the applicable statutory exemptions.Yacobellis, 55 Wash.App. at 714-15, 780 P.2d 272.The case matter was remanded to the trial court for the dual purpose of "(1) set[ting] the amount of costs and attorney fees at trial and upon appeal and (2) determin[ing] whether a statutory award is merited and, if so, the amount thereof."Yacobellis, 55 Wash.App. at 716, 780 P.2d 272.¹

On remand, the trial court entered judgment for Yacobellis in the total amount of $9,202.52, which included costs, attorney fees and a statutory award.The trial court found that the costs and attorney fees requested by Yacobellis were reasonable and awarded essentially the amount requested.However, the trial court limited Yacobellis's recovery of costs and fees to those incurred in the period between January 30, 1988, shortly before the lawsuit commenced, and February 6, 1990, when the Washington State Supreme Court denied review of this court's decision.Yacobellis v. Bellingham, 114 Wash.2d 1002, 788 P.2d 1077(1990).The trial court reasoned that because the public disclosure act permits only those costs and fees "incurred in connection with the legal action," no fees should be awarded for the period of November 26, 1986 through January 29, 1988, which was in preparation for, but prior to, the commencement of the original civil action.

With respect to the discretionary statutory award, the trial court determined that such an award was warranted here.The trial court determined that the relevant inquiry in deciding whether Yacobellis was entitled to a statutory award and the amount of the award was whether and the extent to which he could show actual damages.Because Yacobellis was unable to demonstrate any direct economic damages due to the City's destruction of the public records, the trial court was able to presume only those damages attributable to "inconvenience, frustration, and delays."Expressly exercising the discretion afforded to it under RCW 42.17.340(3), the trial court thus awarded Yacobellis $1 per day from November 16, 1986, the date of his original request for disclosure, through February 6, 1990, the date our Supreme Court denied review.Yacobellis, 114 Wash.2d at 1002, 788 P.2d 1077.

The trial court refused to consider Yacobellis's contention that the City acted in bad faith, concluding that this was "irrelevant" to the determination under RCW 42.17.340(3).Although the trial court did specifically find that one inference from the record was that Yacobellis made at least three requests to inspect and copy the public records prior to their being destroyed by city officials, it also specifically stated that it made "no finding ... concerning the good or bad faith of the City".²

II

Yacobellis claims that the trial court abused its discretion in granting him only a $1 per day statutory award under RCW 42.17.340(3).³His principal contention is that the trial court improperly treated the award as one of damages rather than as a penalty and thus employed the wrong analysis in determining the amount of the award.

RCW 42.17.340(3) clearly places the decision of whether to grant a statutory award, as well as the determination of the amount of the award "within the discretion of the [trial] court."Where the trial court has been granted discretion to act, this court reviews its actions to determine whether there was an abuse of discretion.General Tel. Co. v. Utilities & Transp. Comm'n, 104 Wash.2d 460, 472, 706 P.2d 625(1985).The usual standard by which an appellate court reviews whether the trial court has abused its discretion is expressed in State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775(1971).Under the standard articulated there, a trial court abuses its discretion if its discretion is manifestly unreasonable, or its exercise is based on untenable grounds, or for untenable reasons.Junker, 79 Wash.2d at 26, 482 P.2d 775.

Here, in its oral decision, the trial court acknowledged that it must determine whether the award in RCW 42.17.340(3) was in the nature of a penalty or of damages.The trial court then indicated that the award was in the nature of damages and proceeded to analyze the facts accordingly.

Yacobellis contends that the trial court's treatment of the statutory award as a damage award, rather than as a penalty, constituted an abuse of discretion.According to Yacobellis, because the award is a penalty, the amount should have been determined primarily on the basis of the City's bad faith in destroying the public records he requested, an issue the trial court specifically refused to address.As a corollary to his contention, Yacobellis also argues that the trial court abused its discretion in placing the burden on Yacobellis to show actual damages in the form of economic loss resulting from the City's wrongful conduct.

The language of RCW 42.17.340(3) does not make explicit the intended nature of the award.It authorizes the trial court to "award" an "amount" not to exceed $25 for each day access to public records is wrongfully denied.RCW 42.17.340(3).No Washington court has ever squarely decided this issue.⁴However, in In re Rosier, 105 Wash.2d 606, 617, 717 P.2d 1353(1986), our Supreme Court expressly referred to the award as a "penalty."Similarly, in Hearst Corp. v. Hoppe, 90 Wash.2d 123, 139, 580 P.2d 246(1978), the court characterized the statutory award as a "fine" which, along with costs and attorney fees, comprised the public disclosure act's "punitive provisions."The court also emphasized the importance of the award's deterrent effect, stating that "[s]trict enforcement of these [punitive] provisions ... should discourage improper denial of access to public records and adherence to the goals and procedures dictated by the statute."Hearst, 90 Wash.2d at 140, 580 P.2d 246.

The goals of the public disclosure act are set out in its declaration of policy, which states, in pertinent part, that:

[F]ull 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.

RCW 42.17.010(11).The act further declares that:

The provisions of this chapter shall be liberally construed to promote ... full access to public records so as to assure continuing public confidence [in] ... governmental processes, and so as to assure that the public interest will be fully protected.

RCW 42.17.010.

Thus, the act's declaration of policy makes clear that its primary purpose is to promote broad disclosure of public records.It follows that the act's stated purpose is better served by treating the award as a penalty rather than as a damage award.A penalty is specifically designed to insure performance of statutory duties and can be imposed whenever a violation of duty has occurred.A damage award, in contrast, is designed primarily to compensate individuals for personal injuries and requires that an aggrieved party first show actual loss before an award can be made.A penalty would therefore be more effective than a damage award in deterring governmental agencies from engaging in wrongful denial of public access to public records.

Moreover, to construe RCW 42.17.340(3) as affording trial courts the discretion to treat the award as a damage award would undermine the act's objective of fostering disclosure of public records.Because it will always be difficult to prove damages when the undisclosed documents have been destroyed, governmental agencies might be tempted to destroy public records in order to avoid paying damage awards for nondisclosure.

While we conclude that the award in RCW 42.17.340(3) is intended to be a penalty, we stress that imposition of a penalty does not depend upon a finding by the trial court that the governmental agency's nondisclosure was the result of bad faith.In In re Rosier, our Supreme...