Yousoufian v. Office of Ron Sims, 80081-2.

• Court: United States State Supreme Court of Washington
• Citation: 229 P.3d 735,168 Wash.2d 444
• Docket Number: No. 80081-2.,80081-2.
• 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, Petitioners.
• Decision Date: 25 March 2010

229 P.3d 735
168 Wash.2d 444

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, Petitioners.

No. 80081-2.

Supreme Court of Washington, En Banc.

Argued September 22, 2009.

Decided March 25, 2010.

229 P.3d 736

COPYRIGHT MATERIAL OMITTED

229 P.3d 737

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229 P.3d 738

Stephen Paul Hobbs, H. Kevin Wright, John Robert Zeldenrust, David James Eldred,

229 P.3d 739

King County Prosecutor's Office, Seattle, for Petitioners

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

Michele Lynn Earl-Hubbard, Christopher Roslaniec, Allied Law Group, L.L.C., Seattle, for Amici Curiae Aberdeen Daily World, Allied Daily Newspapers of Washington, Associated Press NW Bureau, Center for Justice, Everett Herald, KING 5, Peninsula Daily News, Skagit Valley Herald, Sound Publishing, TRI-City Herald, Walla Walla Union-Bulletin, Washington Association of Broadcasters, Washington Coalition for Open Government, Washington Newspaper Publishers Association & Wenatchee World.

Alan D. Copsey, Office of the Attorney General, for Amicus Curiae State of Washington.

ALEXANDER, J.

¶ 1 This appeal requires us to decide whether the Court of Appeals erred in concluding that the trial court on remand abused its discretion in imposing a $15 per day penalty against the Office of Ron Sims, King County Executive, for its noncompliance with the Public Records Act (PRA), chapter 42.56 RCW.¹ Although we previously entered a decision in this appeal, we later recalled our mandate. We now affirm with modification the decision of the Court of Appeals.

I

¶ 2 The facts found by the trial judge who originally heard this action and which were relied on by the trial court judge on remand are unchallenged and therefore are verities on appeal. Davis v. Dep't of Labor & Indus., 94 Wash.2d 119, 123, 615 P.2d 1279 (1980).² The summary of the facts of this case, as set forth hereafter, is based on those findings.

¶ 3 On May 30, 1997, Armen Yousoufian submitted a PRA request to King County. The request was prompted by remarks Yousoufian heard King County's then-executive, Ron Sims, give about an upcoming referendum in which voters would be asked to decide whether the county should finance the construction of a $300 million football stadium in downtown Seattle. Yousoufian's request was

for production of two distinct groups of records: (1) studies concerning how a "`fast food'" tax, which was to be used to finance a new stadium, would affect consumers, and (2) "`all 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.'"

Clerk's Papers (CP) at 78-79. The trial court found that Yousoufian had obtained access to a 1994 "Conway study," absent attachments, one day before he filed his PRA request.

¶ 4 Yousoufian's records request was forwarded to "Office Manager" Pam Cole for a response. Id. at 31. On June 4, 1997, Cole acknowledged receipt of Yousoufian's PRA request and stated that the Conway study was available for immediate review but that archives would have to be searched for the other documents that Yousoufian was seeking. Although Cole said that the archive search would take approximately three weeks, she did not specifically inquire about the location of the other studies before responding to Yousoufian. The trial court

229 P.3d 740

found that "much of Mr. Yousoufian's PRA request involved documentation not yet stored in Archives." Id. On June 10, Yousoufian was given access to the attachments to the 1994 Conway study as well as another study

¶ 5 On June 18, 1997, Yousoufian sent a letter to the county in which he complained about what he said was the delay in furnishing him with the remaining documents that he had requested. His letter indicated that he believed that the fast food tax study should not have been archived because of its then-recent nature. In response, the county directed Yousoufian to request that study from the Washington State Restaurant Association. The county's response also indicated that Yousoufian would be contacted the following week regarding materials related to the Conway study that were purportedly being compiled. The trial court found no evidence to indicate that the county ever made the promised follow-up contact with Yousoufian.

¶ 6 Meanwhile, on June 12, 1997, Linda Meachum, who had taken over responsibility from Cole for managing Yousoufian's PRA request, forwarded the request to Susan Clawson in the King County Department of Stadium Administration. Meachum thereafter relied on Clawson to handle Yousoufian's request. Clawson then assigned the task to Steve Woo, her administrative assistant. At this time, Woo had no knowledge of the PRA or its requirements and had not received any training on how to respond to a PRA request. Meachum did not follow up with Clawson to ensure that Yousoufian received an adequate response to his request.

¶ 7 On July 15, 1997, Woo spoke with Yousoufian by telephone and informed him of a second Conway study, related to football, which was conducted in 1996. Woo sent this study to Yousoufian, along with information concerning the cost of the study and another study commissioned by the county. Woo did not include the cost documentation that Yousoufian had requested. Furthermore, some of the cost information Woo provided to Yousoufian was incorrect. The trial court found that it was "apparent from the correspondence that Mr. Woo did not carefully read nor ... understand Mr. Yousoufian's PRA request." Id. at 35.

¶ 8 On August 21, 1997, Yousoufian again wrote the county and reiterated his request for "`any and all reports on economic impacts of sports stadiums.'" Id. at 34. In response, Woo permitted Yousoufian to view four more studies. The trial court found that Woo incrementally released information, rather than releasing it all at one time, even after he realized that Yousoufian's request was for more information.

¶ 9 On August 27, 1997, the county sent a letter to Yousoufian that stated that his letter had been interpreted as a request for information relating only to baseball, thereby explaining why the county had initially only provided the 1994 Conway study. The trial court found that this explanation was not reasonable. The county's letter also stated that Meachum was searching the archives and asked if Yousoufian would like the stadium administration to search its archives as well. The trial court found that "it was not reasonable to ask Mr. Yousoufian where to search for the documents responsive to his request." Id. at 36.

¶ 10 On October 2, 1997, Yousoufian sent the county another letter in which he indicated that he had still not received some of the documents that he had requested. In it he reiterated his request for cost documentation. Meachum responded on October 9, stating that her office had provided all the documents in its possession pertaining to Yousoufian's May 30 request. Meachum advised Yousoufian to be very specific in future PRA requests. On that same day, Yousoufian received a letter from the county, signed by Desiree Leigh. Leigh notified him that the archival search had been performed and responsive documents were being forwarded to the county's attorneys for their review. Her letter estimated that the documents would be available within two weeks. There was no evidence, however, that an archival search was ever performed or, if performed, why it took so long to complete. Also on October 9, Woo faxed a letter to Yousoufian explaining that two more studies could be found on the county's web site. Woo sent Yousoufian these studies on October 10, but

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again he failed to provide cost documentation.

¶ 11 On October 14, 1997, Yousoufian wrote the county once again to express his confusion about the apparent conflict between the Meachum and Leigh letters. Oma LaMothe, a King County deputy prosecuting attorney, responded by letter in which she stated that she had reviewed Yousoufian's original request and believed it had been fully answered. She also stated that two boxes of documents had been retrieved that she believed were not relevant to Yousoufian's original request. She invited Yousoufian to view the documents. LaMothe ended her letter by commenting on the "difficulty" she had in interpreting Yousoufian's PRA request. Id. at 37. The trial court found that Yousoufian's request was clear, albeit "extremely broad," and "not vague or ambiguous." Id. at 30. After making several attempts to arrange a time to view the two boxes of documents, Yousoufian viewed them on October 28.

¶ 12 Having determined that he had still not received all of the documents he had requested from the county, Yousoufian hired an attorney. His attorney wrote to the county on December 8, 1997, and reiterated Yousoufian's May 30 request and requested "all documents ... relevant to the questions of who ordered each cost study, how they were ordered and what the cost was." Id. at 79.

¶ 13 On December 10, 1997, office manager Cole e-mailed Woo and others to request the cost documentation. Woo responded on December 12, listing the documents he had already provided to Yousoufian and stating that he believed he had completely responded to Yousoufian's request. The trial court found that Woo's response to Cole's e-mail "demonstrated his ignorance of the initial request." Id. at 38. Moreover, although Woo indicated that he would generate the additional information regarding the cost of the studies, the trial court found no evidence that he ever did so.

¶ 14 On...