Yousoufian v. Office of Ron Sims, 73763-1.

• Court: United States State Supreme Court of Washington
• Citation: 152 Wash.2d 421,152 Wn.2d 421,98 P.3d 463
• Decision Date: 30 September 2004
• Docket Number: No. 73763-1.,73763-1.
• Parties: Armen YOUSOUFIAN, Petitioner, v. The OFFICE OF RON SIMS, King County Executive, a subdivision of King County, a municipal corporation; The King County Department of Finance, a subdivision of King County, a municipal corporation; and The King County Department of Stadium Administration, a subdivision of King County, a municipal corporation, Respondents.

98 P.3d 463
152 Wn.2d 421
152 Wash.2d 421

Armen YOUSOUFIAN, Petitioner,
v.
The OFFICE OF RON SIMS, King County Executive, a subdivision of King County, a municipal corporation; The King County Department of Finance, a subdivision of King County, a municipal corporation; and The King County Department of Stadium Administration, a subdivision of King County, a municipal corporation, Respondents

No. 73763-1.

Supreme Court of Washington, En Banc.

Argued February 19, 2004.

Decided September 30, 2004.

98 P.3d 464

David Joseph Balint, Michael G. Brannan, Law Office of Michael G. Brannan, Seattle, Rand F. Jack, Bellingham, for Petitioner

Mark Gibson Stockdale, Seattle, for Respondents.

Michael John Killeen, Alison Page Howard, Davis Wright Tremaine LLP, Seattle, for Amicus Curiae (Allied Daily Newspapers of Wa) for Amicus Curiae (Wa Newspapers Publishers Assn).

Timothy Dunning Ford, Olympia, for Amicus Curiae (Building Industry Assn. of Wa).

Jan Elizabeth Brucker, Seattle, for Amicus Curiae (Citizens for a Livable Northgate) for Amicus Curiae (Seattle Neighborhood Coalition).

98 P.3d 465

William John Crittenden, Patrick Denis Brown, Seattle, for Amicus Curiae (League of Women Voters of Seattle)

Maureen A. Hart, Olympia, for Amicus Curiae (State of Washington).

Edwin Klaich Inkley, Seattle City Attorneys Office, Seattle, for Amicus Curiae (Washington Association of Municipal Attorneys).

ALEXANDER, C.J.

We are asked to determine the proper application of a provision in the public disclosure act (PDA), RCW 42.17.340(4), which provides penalties for the failure to timely produce public records. Specifically, we must decide whether a trial court that has determined that a violation of the PDA has occurred (1) must assess a per day penalty for each requested record that was withheld in violation of the act and (2) has the authority to limit the number of days against which the penalty is assessed due to the plaintiff's failure to file suit within a "reasonable amount of time." We hold that under the PDA, penalties need not be assessed per record, and that trial courts must assess a per day penalty for each day a record is wrongfully withheld. Consequently, we affirm the decision of the Court of Appeals, except for its determination to reduce the number of days upon which the penalty was assessed, which decision is reversed.

I

On May 30, 1997, Armen Yousoufian sent a records disclosure request to King County Executive Ron Sims. The request, which was made pursuant to the PDA, requested the production of two distinct groups of records: (1) studies concerning how a "`fast food'" tax used to finance a new stadium would affect consumers, and (2) "[a]ll file materials relating to, and including, the widely quoted `Conway Study' that many politicians have referred to in connection with the economic impacts of sports stadiums and any other such studies."¹ Clerk's Papers (CP) at 36, 37. On June 4, 1997, a King County "office manager" acknowledged Yousoufians request by sending him a letter stating that the Conway Study was available for review, but that it would take approximately three weeks to determine if there were other documents that fell within his request.

In succeeding months, representatives of the county corresponded with Yousoufian regarding the production of additional documents. Although the county produced many documents during this time, Yousoufian was not satisfied with the county's response because he felt that it was incomplete and untimely.

Consequently, Yousoufian hired an attorney who wrote to the county on December 8, 1997. In his letter, the attorney reiterated Yousoufians May 30 request and additionally requested "all documents ... relevant to the questions of who ordered each study, how they were ordered and what the cost was." Ex. 193, at 2. The county responded to the attorneys letter, which led to additional correspondence between the parties. The last correspondence between the parties occurred on June 22, 1998, when the county informed Yousoufian that the King County Department of Finance "has no documents related to the financing of stadium studies." Ex. 205.

On March 30, 2000, Yousoufian filed suit against the county in King County Superior Court.² During the course of litigation, the county located more responsive documents, including documents held by the King County Department of Finance relating to the financing of stadium studies. These were documents it had earlier denied having.

98 P.3d 466

Following a trial in superior court, the trial court entered findings of fact and conclusions of law,³ and determined that Yousoufian actually made two PDA requests for documents. The first request, it determined, was on May 30, 1997, and the second was on December 8, 1997. The trial court reasoned that in his letter of December 8, 1997, Yousoufians attorney sought records that had not been requested on May 30, 1997

Although the trial court concluded that the county eventually produced the requested documents, it also determined that the county's delays constituted a violation of the PDA. The trial court specifically found that "the County was negligent in the way it responded to Mr. Yousoufians PDA request at every step of the way, and this negligence amounted to a lack of good faith." CP at 1026. The trial court went on to conclude, however, that the county did not act in "bad faith in the sense of intentional nondisclosure." CP at 1025.

The trial court then proceeded to determine the amount of statutory penalties that it would award pursuant to RCW 42.17.340(4), the statute which authorizes an award to "[a]ny person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record." Yousoufian indicated at that time that he was seeking penalties for each day that the 228 requested "record[s]" were wrongfully withheld. CP at 688. He calculated the penalty at $1,534,855 if the court assessed the minimum penalty of $5 per day and $30,697,100 if the court assessed the maximum penalty of $100 per day.⁴

The trial court refused to award penalties on a per record basis concluding that it would result "in a penalty totally out of proportion to the County's negligence, the harm done thereby, and any amount needed for deterrence." CP at 1035. Instead, it arranged the withheld records into 10 groups based on time of production and subject matter. The trial court then determined the award based on these groups.

In arriving at the penalty, the trial court calculated the total number of days each group of records was wrongfully withheld. It then subtracted 527 days from the time that six of the groups were withheld⁵ based on the fact that Yousoufian waited an excessive amount of time (647 days) from the date of the county's last correspondence until filing suit. It determined that 120 days was "a reasonable amount of time for Mr. Yousoufian to find an attorney to represent him" following the last correspondence. CP at 1037. It then took the difference between 120 days and 647 days (527 days) to reach the number of days it subtracted from the time each of the six groups of records were wrongfully withheld. While the court did not explain its basis for determining that 120 days was a reasonable period of time for Yousoufian to hire an attorney and bring suit, it did indicate that it refused to include the full 647 days "[b]ecause inclusion of this time would encourage future plaintiffs to delay in filing suit in order to incur additional penalties." Id. In the final analysis, the trial court calculated the penalty period at 5,090 days⁶ and multiplied this figure by the statutory minimum penalty of $5 per day, to arrive at an award to Yousoufian of $25,440⁷ in

98 P.3d 467

statutory penalties. In total, Yousoufian received an award of $114,416.26, which included $82,196.16 in attorney fees, $6,780.10 in costs, and $25,440 in statutory penalties.

Yousoufian appealed the trial courts decision to Division One of the Court of Appeals. Yousoufian v. Office of King County Executive, 114 Wash.App. 836, 60 P.3d 667, review granted, 150 Wash.2d 1001, 77 P.3d 651 (2003). Yousoufian asserted there that the trial court erred in holding that the county had disclosed all records responsive to his request and in determining the penalties and attorney fees. Applying de novo review, the Court of Appeals affirmed the trial courts finding that the county had completely responded to Yousoufians PDA request. Applying an abuse of discretion standard of review, the Court of Appeals affirmed the trial courts determination of reasonable attorney fees, its refusal to award penalties per record, and its subtraction of 527 days from the penalty period. The Court of Appeals did, however, determine that the trial court abused its discretion in awarding the statutory minimum penalty of $5 per day in light of the county's gross negligence. Therefore, it remanded for the trial court to award a penalty exceeding the statutory minimum.

Yousoufian petitioned this court for discretionary review of the Court of Appeals decision relating to the appropriate standard of review, the assessment of penalties per record, and the subtraction of days from the penalty period.⁸ The county also sought discretionary review, claiming that the Court of Appeals erred in remanding for the imposition of a per day penalty above $5. We granted review of all issues raised by the parties.

II

Under the PDA, all state and local agencies must disclose any requested public record, unless the record falls within a specific exemption. Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.2d 243, 250, 884 P.2d 592 (1994). The PDA enables citizens to retain their sovereignty over their government and to demand full access to information relating to their government's activities. RCW 42.17.010, .251. The provisions of the PDA are to be "liberally construed and its exemptions narrowly construed to...