Yousoufian v. Office of Ron Sims

Decision Date05 February 2007
Docket NumberNo. 57112-5-I.,57112-5-I.
Citation137 Wn. App. 69,151 P.3d 243
CourtWashington Court of Appeals
PartiesArmen YOUSOUFIAN, Appellant, 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 Stadium Administration, a subdivision of King County, a municipal corporation, Respondents.

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

John Robert Zeldenrust, Office of the Prosecuting Attorney, Seattle, WA, for Respondents.

Michele Lynn Earl-Hubbard, Davis Wright Tremaine LLP, Seattle, WA, Amicus Curiae on behalf of Allied Daily Newspapers of Washington, The Evergreen Freedom Foundation, The Washington Newspapers Publishers Association, The Washington Coalition for Open Government, The Seattle Community Council Federation, Reporters Committee for Freedom of the Press.

GROSSE, J.

¶ 1 The purpose of Washington's Public Disclosure Act is best served by basing penalties principally on the degree of the offending agency's culpability. Because King County's conduct in this case was grossly negligent, a penalty at the low end of the statutory range is unsustainable. We thus reverse and remand to the trial court for a determination of an appropriate penalty that is consistent with this opinion.

FACTS

¶ 2 Once again, this court is called upon to evaluate whether the trial court abused its discretion in determining the amount of the per day penalty imposed upon King County for its failure to reasonably comply with Armen Yousoufian's request for information under Washington's Public Disclosure Act (PDA).

¶ 3 In 1997, Yousoufian requested King County to provide him with documents related to the public financing of a new football stadium for the Seattle Seahawks. After meeting numerous roadblocks in his efforts to obtain the documents, Yousoufian sued King County under the PDA. In September 2001, after a trial before the King County Superior Court, the trial court found King County had violated the PDA and imposed a $5 per day penalty on King County for its failure to reasonably comply with Yousoufian's request.

¶ 4 Specifically, the trial court found King County's responses to Yousoufian's requests were untimely and demonstrated a lack of good faith. The court stated in its finding of fact and conclusions of law:

Washington's Public Disclosure Act requires agencies to act with due diligence and speed in responding to requests for public documents. The Act imposes on agencies an obligation to devote their best efforts to providing the "fullest assistance possible" to citizens making public disclosure requests. If a request is ambiguous or broad, the statute mandates that the agency make an effort to clarify and narrow the request. A failure to fulfill these obligations amounts to a lack of good faith under the statute.

The Court does not find that there was "bad faith" in the sense of intentional nondisclosure. However, the Court finds that there was not a good faith effort by the involved county staff to read, understand, and respond to Mr. Yousoufian's letter in a timely, accurate manner. There was a complete lack of coordination among the departments and staff assigned to the task, and absolutely no effective oversight of this PDA request. Certainly, King County did not render full assistance to Mr. Yousoufian as required under the statute. Nor was there an effective system for tracking a PDA request to ensure compliance with the law.

The County's lack of good faith was also apparent in misrepresentations made in correspondence to Mr. Yousoufian. Many of the letters contained incorrect statements, both factual and legal. No effort was made to verify the accuracy of those statements.

In summary, the County was negligent in the way it responded to Mr. Yousoufian's PDA request at every step of the way, and this negligence amounted to a lack of good faith. There was a lack of coordination among the departments and there was a lack of oversight by the Executive's Office. The people given the responsibility for this PDA request had only a rudimentary understanding of the County's responsibilities under the PDA and apparently were not trained in how to locate and retrieve documentation, or didn't take the trouble to do so. No one ever took the time to carefully read Mr. Yousoufian's letter. If they claimed to be confused about the request, there was inadequate communication with Mr. Yousoufian to clear up the confusion. There were broad assumptions that Mr. Yousoufian was being difficult or unreasonable, assumptions which may have affected how people responded to his requests.

. . . .

Although there was an [sic] clear mishandling of Mr. Yousoufian's request, the Court finds no intentional nondisclosure or intent to conceal. Although not effective, it appears that the county's intent was to be responsive to Mr. Yousoufian's request.

¶ 5 On appeal, we reversed the per day court imposed penalty, stating that "the trial court's findings of gross negligence and a lack of good faith by the county do not support the court's imposition of a minimum penalty of $5 per day."1 We explained:

In the final analysis, it seems clear that the county's violation of the PDA was due to poor training, failed communication, and bureaucratic ineptitude rather than a desire to hide some dark secret contained within its files. We therefore agree with the trial court's characterization of the county's conduct as grossly negligent, but not intentional, withholding of public records.2

Furthermore, we concluded:

Although we afford great deference to the trial court in this matter, we are convinced that the trial court's award of the minimum statutory penalty must be reversed. While the trial court stopped short of finding bad faith in the sense of intentional nondisclosure, the court's findings reflected strong disapproval with what the court saw as gross negligence by the county in responding to Yousoufian's public records request. Those findings do not support the court's imposition of a minimum penalty of $5 per day. The minimum statutory penalty should be reserved for instances of less egregious agency conduct, such as those instances in which the agency has acted in good faith but, through an understandable misinterpretation of the PDA or failure to locate records, has failed to respond adequately.3

In so stating, we also held the trial court erred by relying on the attorney fee award as a basis on which to award a minimum penalty where a higher penalty would otherwise be appropriate. We thus remanded to the trial court for a determination of the appropriate penalty above the statutory minimum.

¶ 6 The case was then appealed to the Washington Supreme Court. There, King County conceded that a penalty greater than the minimum was justified in this case; however, it claimed the Court of Appeals erred in characterizing the $5 daily penalty as the minimum penalty. According to King County, "the trial court actually increased the total penalty by assessing the per day penalty against the number of days each of the 10 groups of records were withheld rather than basing the penalty on two requests, as the county proposed."4 The Supreme Court rejected this argument, as had the Court of Appeals, because King County had failed to challenge on appeal the manner in which the records were grouped. The Supreme Court explained:

The process for determining the appropriate PDA award is best described as requiring two steps: (1) determine the amount of days the party was denied access and (2) determine the appropriate per day penalty between $5 and $100 depending on the agency's actions. The determination of the number of days is a question of fact. However, as discussed above, the determination of the appropriate per day penalty is within the discretion of the trial court.

The Court of Appeals correctly ignored the manner in which the records were grouped because the county failed to assign error to the trial court's method of calculation. Therefore, we agree with the Court of Appeals that assessing the minimum penalty of $5 a day was unreasonable considering that the county acted with gross negligence.5

The Supreme Court thus remanded the case to the trial court for an imposition of the appropriate penalty.

¶ 7 While the majority remained silent on what that penalty should be, other members of the court offered their opinions. In his concurrence/dissent, Justice Chambers disagreed with the majority's conclusion that the trial court abused its discretion in assessing the minimum daily penalty of $5. Justice Tom Chambers argued that issues involved in public disclosure requests may become complex and raise many issues that should be left to the sound discretion of the trial court. On the other hand, Justice Richard Sanders argued in his concurrence/dissent that a penalty at the upper range of the $5 to $100 scale be applied in this case.

¶ 8 On remand, the trial court imposed a penalty of $15 per day, using as guidance a prior decision from this court, A.C.L.U. of Washington v. Blaine School District No. 503.6 Yousoufian appeals, claiming the facts of this case warrant a higher penalty.7

ANALYSIS

¶ 9 We review the trial court's determination of the daily penalties under the PDA for an abuse of discretion.8 Here, the only remaining issue is the amount of the daily penalty imposed on King County. The grouping of the documents and the number of penalty days has been resolved.

¶ 10 The case law states that a showing of bad faith or economic loss "are factors for the trial court to consider in determining the amount to be awarded" for a violation of the PDA.9 Furthermore, "[w]hen determining the amount of the penalty to be imposed the `existence or absence of [an] agency's bad faith is the principal...

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    ...$123,780. Yousoufian appealed the daily penalty amount, and the Court of Appeals again reversed. Yousoufian v. Office of Ron Sims, 137 Wash. App. 69, 80-81, 151 P.3d 243 (2007) (Yousoufian III). We granted the county's petition for discretionary review. Yousoufian v. Office of Ron Sims, 162......
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