Yousoufian v. Office of Sims

• Decision Date: 15 January 2009
• Docket Number: No. 80081-2.,80081-2.
• Citation: 200 P.3d 232,165 Wn.2d 439
• Parties: Armen YOUSOUFIAN, Respondent, 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, Petitioner.
• Court: Washington Supreme Court

200 P.3d 232

165 Wn.2d 439

Armen YOUSOUFIAN, Respondent, 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, Petitioner.

No. 80081-2.

Supreme Court of Washington, En Banc.

Argued February 26, 2008.

Decided January 15, 2009.

Stephen Paul Hobbs, King County Prosecutor's Office, Seattle, WA, for Petitioner.

Michael G. Brannan, Law Office of Michael G. Brannan, Edmonds, WA, Rand F. Jack, Brett & Coats, Bellingham, WA, for Respondent.

Michele Lynn Earl-Hubbard, Allied Law Group, LLC, Seattle, WA, for Amicus Curiae on behalf of Allied Daily Newspapers of Washington.

SANDERS, J.

¶ 1 We are asked once again to determine the appropriate application of RCW 42.56.550(4) (formerly RCW 42.17.340), requiring penalties for a state agency's failure to timely produce public records. Specifically, we decide whether the trial court abused its discretion by imposing a $15 per day penalty in response to King County's grossly negligent noncompliance with the Public Records Act (PRA).¹ Under the facts of this case we hold the trial court abused its discretion by imposing a penalty at the low end of the PRA penalty range. Accordingly, we remand to the trial court with directions to recalculate the penalty in accordance with the guidance set forth in part III. A of this opinion.² Consequently, we affirm but modify the decision of the Court of Appeals.

I

¶ 2 The facts found by the original trial judge are unchallenged and the subject of three published opinions. See Yousoufian v. Office of King County Executive, 114 Wash. App. 836, 840-46, 60 P.3d 667 (2003) (Yousoufian I), aff'd part, rev'd in part by Yousoufian v. Office of King County Executive, 152 Wash.2d 421, 98 P.3d 463 (2005) (Yousoufian II); Yousoufian II, 152 Wash.2d at 425-29, 98 P.3d 463; Yousoufian v. Office of Ron Sims, 137 Wash.App. 69, 71-75, 151 P.3d 243 (2007) (Yousoufian III). Unchallenged findings of fact are "verities on appeal." Davis v. Dep't of Labor & Indus., 94 Wash.2d 119, 123, 615 P.2d 1279 (1980).

¶ 3 On May 30, 1997, Armen Yousoufian submitted a PRA request to the Office of the Executive of King County after Yousoufian heard King County Executive Ron Sims speak about the upcoming referendum election in which voters would decide on June 17 whether to finance $300 million for a new football stadium in Seattle. Sims referred to several studies regarding the impact of sports stadiums on the local economy. One of these studies was called the "Conway study." Yousoufian asked to review all material relating to the Conway study and any other such studies, including a restaurant study concerning the effects of a fast food tax. Yousoufian's PRA request was forwarded to office manager Pam Cole for a response.

¶ 4 On June 4, 1997, Cole acknowledged receipt of Yousoufian's PRA request, stating the Conway study was available for review, but archives would have to be searched for other responsive documents. Cole said the archive search would take approximately three weeks; however, before sending this response Cole never inquired into the location of responsive documents. The trial judge found "much of Yousoufian's [PRA] request involved documentation not yet stored in Archives." Clerk's Papers (CP) at 31. On June 10 Yousoufian reviewed the Conway study as well as another study.

¶ 5 The referendum was held on June 17 while most of the requested information was still withheld. On June 20, 1997, Yousoufian sent a letter to the Office of the Executive of King County protesting the three-week delay for the remaining documents responsive to his request. Yousoufian's letter pointed out one study in particular should not be already archived because the tax it analyzed was recently passed. Cole responded and directed Yousoufian to request that study from the Washington State Restaurant Association. Cole's letter also stated she would contact Yousoufian the following week regarding the rest of his request. The trial judge found nothing to indicate Cole ever followed up with Yousoufian.

¶ 6 Meanwhile, on June 12, 1997, Linda Meachum, who took over responsibility from Cole for managing Yousoufian's PRA request, contacted Susan Clawson in the King County Department of Stadium Administration, asking her to search for responsive documents. Clawson delegated this task to Steve Woo, her administrative assistant. Woo had no knowledge of the PRA or its requirements and was never trained in how to respond to a PRA request. Meachum never followed up with Clawson to ensure an adequate response.

¶ 7 On July 15, 1997, Woo spoke with Yousoufian by telephone, informing him of a second, earlier Conway study. On July 25, 1997, Woo sent Yousoufian the earlier Conway study along with cost information about this Conway study and another study commissioned by King County. Woo did not include any cost documentation, which Yousoufian requested, and the cost information Woo provided was incorrect. The trial judge found it "apparent from the correspondence that [Woo] did not carefully read or reasonably understand [Yousoufian's PRA] request." CP at 35.

¶ 8 On August 21, 1997, Yousoufian wrote the Office of the Executive of King County to reiterate his request for cost documentation. In response to this letter, Woo permitted Yousoufian to view four more studies. The trial judge found Woo incrementally released information, rather than all at once, even after he realized Yousoufian's request was for all information.

¶ 9 On August 27, 1997, the Office of the Executive responded to Yousoufian's letter stating it interpreted all PRA requests as requests for records located within that office and any coordination with other agencies was a gratuity. The letter stated Meachum was searching the archives and asked if Yousoufian would like the stadium administration to search their archives as well. The trial judge found, "[i]t was not reasonable to ask [Yousoufian] where to search for the documents responsive to his request." CP at 36.

¶ 10 On October 2, 1997, Yousoufian sent yet another letter reiterating his request for cost documentation. Meachum responded on October 9 stating her office had provided all the documents in its possession pertaining to Yousoufian's May 30 request. Meachum admonished Yousoufian to be more specific in future PRA requests. On the same day, Yousoufian received another letter from the Office of the Executive notifying him that the archival search had been performed and responsive documents were being forwarded to King County's attorneys for review. This letter estimated the documents would be available within two weeks. Yet, there was no evidence an archival search was ever performed, or if one was performed why it took so long. Also on October 9 Woo faxed a letter to Yousoufian explaining more studies could be found on the King County web site. On October 10 Woo sent Yousoufian two more studies, but he again failed to provide cost documentation.

¶ 11 On October 14, 1997, Yousoufian complained about the conflicting communications he was receiving from different county employees. Oma LaMothe, a King County deputy prosecuting attorney, replied to state she had reviewed Yousoufian's original request and believed it had been fully answered. She stated the archive search had been completed and two boxes of documents had been retrieved that she believed were not relevant to Yousoufian's original request, but she invited Yousoufian to view the documents. She ended the letter by commenting on her difficulty in interpreting Yousoufian's PRA request. However, the trial judge found Yousoufian's request was neither vague nor ambiguous, but clear on its face. Additionally, the trial court found at no time did anyone from King County ask Yousoufian to clarify his request.

¶ 12 On October 28, 1997, Yousoufian viewed the two boxes of documents. He made several attempts to arrange a time to view them sooner, but he was allowed to view them only during office hours in the presence of particular staff members.

¶ 13 After determining he had still not received all the documents he requested Yousoufian hired an attorney. On December 8, 1997, Yousoufian's attorney wrote to once again reiterate Yousoufian's original PRA request. This letter reiterated the types of records Yousoufian sought, including contracts and bills for the studies, bidding documents, and memos discussing the consultants who conducted the studies.

¶ 14 On December 10 Cole e-mailed Woo and others to request the documentation. On December 12 Woo responded, listing the documents he had already provided and stating he had completely responded to Yousoufian's request. The trial court found Woo's statement "demonstrated his ignorance of the initial request." CP at 38. Moreover, Woo indicated he would generate the additional information regarding cost documentation, but the trial judge found nothing to indicate Woo ever did so.

¶ 15 On December 15, 1997, John Wilson, Sims's chief of staff, wrote Yousoufian's attorney outlining the documents King County previously disclosed. Wilson told Yousoufian to direct any further requests for information to the public facility district. On December 31, 1997, Yousoufian's attorney responded, requesting disclosure of documents responsive to Yousoufian's original request, protesting the county's unresponsiveness, and warning Yousoufian would file a lawsuit if his request continued to be ignored. On January 14, 1998, LaMothe responded, stating the Office of the Executive was only responsible for providing documents within its office and that "`hundreds of hours'" had already been spent responding to Yousoufian's PRA request. CP at 39. The trial judge found this response by LaMothe to be "factually and legally incorrect." Id.

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