Zink v. City of Mesa
| Decision Date | 07 June 2011 |
| Docket Number | Nos. 27596–5–III,28112–4–III.,s. 27596–5–III |
| Citation | 162 Wash.App. 688,256 P.3d 384 |
| Parties | Jeff ZINK and Donna Zink, husband and wife, Appellants,v.CITY OF MESA, a Washington Municipal Corporation, Respondent and Cross–Appellant. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Ronald Francis St. Hilaire, Liebler Connor Berry & St. Hilaire PS, Kennewick, WA, for Appellants/Cross–Respondents.Leland Barrett Kerr, Kerr Law Group, Kennewick, WA, Ramsey E. Ramerman, Everett, WA, for Respondent/Cross–Appellant.Daniel Brian Heid, Auburn, WA, Steven L. Gross, Auburn, WA, amicus counsel for Washington State Association.
Daniel Brian Heid, Auburn, WA, Steven L. Gross, Auburn, WA, amicus counsel for Association of Washington Cities.KULIK, C.J.
[162 Wash.App. 698] ¶ 1 We review for the third time the continuing conflicts between the City of Mesa (Mesa) and Jeff and Donna Zink (Zinks). Initially, the Zinks appealed the termination of their building permit. We held in their favor. Then the Zinks appealed the trial court's decision on Mesa's violations of the Public Disclosure Act, chapter 42.17 RCW.1 We again held in favor of the Zinks and remanded to the trial court for assessment of penalties and fees against Mesa.
¶ 2 The trial court set the penalties, costs, and attorney fees at $246,000. The Zinks appealed this judgment and Mesa cross-appealed. During the appeal, the Supreme Court issued Yousoufian v. Office of Ron Sims, 168 Wash.2d 444, 229 P.3d 735 (2010) ( Yousoufian 2010).
¶ 3 On appeal and cross-appeal, the parties agree that the trial court used the wrong legal standard to set the daily penalty under the Public Records Act (PRA), citing Yousoufian 2010. The Zinks ask this court to apply the aggravating factors of Yousoufian 2010 and to impose additional penalties. Mesa, on the other hand, contends the matter should be remanded to the superior court and Mesa should be allowed to present supplemental evidence of mitigating factors.
[162 Wash.App. 699] ¶ 4 Yousoufian 2010 provides guidance for assessing penalties under the PRA. It is appropriate for the trial court, not the appellate court, to again examine the daily penalties. Thus, we remand to the trial court for its determination of penalties utilizing the guidance provided in Yousoufian 2010. We specifically address the other issues raised by the parties in their appeal and cross-appeal.
¶ 5 In August 2002, Mesa expired a building permit it had issued to the Zinks to repair and remodel their fire-damaged home. Zink v. City of Mesa, 140 Wash.App. 328, 333, 166 P.3d 738 (2007). Mesa cited neighbors' complaints about conditions around the home as the basis for its decision. Id.
¶ 6 The Zinks appealed to the Mesa Board of Appeals (Board) and began filing disclosure requests for public documents held by Mesa. Id. From early August 2002 to January 31, 2005, the Zinks filed between 68 to 172 record requests. Id. Most of these requests were to review or receive copies of records linked to the decision on their building permit, but some also related to the Zinks' perception that Mesa had treated other citizens unfairly. Ms. Zink was a former city council member and former mayor of Mesa. She later testified that her “watch-dog” activities may have generated Mesa's alleged resistance to filling her public record requests. Id. at 333–34, 166 P.3d 738.
¶ 7 In March 2003, the Board affirmed Mesa's decision to expire the Zinks' building permit. Zink v. City of Mesa, 137 Wash.App. 271, 274, 152 P.3d 1044 (2007). The Zinks filed a PRA action against Mesa in April 2003. 2 They alleged that Mesa wrongfully denied, delayed, or limited time to view many of their requests for review of and copies of public records. Additionally, they alleged that Mesa charged them excessive amounts for copies. They requested a court order compelling Mesa to allow them to view the wrongfully withheld documents, to provide copies at the cost allowed by statute, to award a penalty of $100 for each day the documents were withheld, and for reasonable attorney fees and costs.
¶ 8 On February 27, 2004, the Zinks filed a motion for an order to show cause why the trial court should not enter findings granting them the relief requested in their complaint. Zink, 140 Wash.App. at 334, 166 P.3d 738. Specifically, the Zinks asserted that Mesa had violated the PRA by failing to respond to the Zinks' requests within five days, failing to provide the records within the time Mesa stated that it would, unreasonably delaying and wrongfully denying record requests, wrongfully redacting portions of records, failing to specifically state the bases for denials of some requests, charging excessive amounts for copies, and limiting the time in which the Zinks could view some public records to one hour per day. Zink, 140 Wash.App. at 334, 166 P.3d 738.
¶ 9 At the hearing on the show cause motion, the trial court heard testimony from the Zinks, Mr. Zink's sister, Mesa City Clerk Teresa Standridge, and the assistant city clerk. Id. In June 2005, the court entered findings, conclusions, and an order denying the Zinks' motion, generally finding that Mesa “more than substantially complied” with the Zinks' “overly excessive” public record requests. Clerk's Papers (CP) at 313–14. In specific findings, the court stated that restricting the Zinks' viewing of public records to one hour per day was “more than reasonable given the circumstances”; no complaint had been filed against the Zinks' home, although there was a memorandum of complaints that was not a public record; and the Zinks were never charged more than $.15 per copy. CP at 314. The trial court concluded that the Zinks' public record requests amounted to unlawful harassment, the Zinks did not receive disparate treatment, and it was a “practical impossibility” for Mesa to strictly comply with the Zinks' public record requests due to the number of requests and limited manpower. CP at 314–15.
¶ 10 The Zinks appealed the trial court's decision to this court in July 2005. We reversed, holding that “administrative inconvenience or difficulty does not excuse strict compliance” with the PRA. Zink, 140 Wash.App. at 337, 166 P.3d 738. We additionally found that Mesa's restriction of the Zinks' access to the public records amounted to disparate treatment in violation of former RCW 42.17.270 (1987), the Zinks did not unlawfully harass Mesa, and any written complaint against the Zinks' home is not exempt from disclosure. Zink, 140 Wash.App. at 343–45, 166 P.3d 738. The case was remanded to the superior court to impose statutory penalties on a “per-day, per-request basis, in an amount it determines to be appropriate in light of the relevant circumstances.” Zink, 140 Wash.App. at 348, 166 P.3d 738 (citing Yousoufian v. Office of King County Exec., 152 Wash.2d 421, 430–39, 98 P.3d 463 (2004) ( Yousoufian 2004)). The trial court was also directed to determine the appropriate copy charges for the requests at issue. Id. at 345, 166 P.3d 738.
¶ 11 A hearing was held before the original trial judge on July 16 and 17, 2008. The court's findings, conclusions, and order entered on November 7, 2008, set the number of penalty days for 37 unlawfully denied, delayed, or limited public record requests (or combinations of requests) and set a per-day penalty for each violation. Mesa was ordered to pay the Zinks $167,930 in penalties, $5,700 in costs, and $72,309 in attorney fees, for a total judgment of about $245,940.
¶ 12 The Zinks appealed to this court and Mesa cross-appealed (No. 27596–5–III). The Zinks later appealed the trial court's separate order entered after in camera review of documents Mesa claimed were exempt from disclosure due to attorney-client privilege (No. 28112–4–III). These appeals were consolidated for review. Before the matter had been set for oral argument, the Washington Supreme Court accepted review of Yousoufian v. Office of Ron Sims, 137 Wash.App. 69, 151 P.3d 243 (2007), aff'd as modified, 168 Wash.2d 444, 229 P.3d 735. Noting that the trial court had based its per-day penalty awards on the standards outlined by the Court of Appeals in Yousoufian, Mesa requested a stay of this appeal, pending the issuance of the Yousoufian mandate. The commissioner of court granted the stay, which was lifted in May 2010 after the Supreme Court issued the mandate in Yousoufian 2010.
¶ 13 The Zinks contend the trial court erred in (1) calculating the number of penalty days, (2) using a starting point at the low end of the penalty range, (3) failing to require Mesa to specifically identify which exemption applied to which record, (4) deciding that all communication between Mesa and the city attorney is privileged, and (5) deciding that a tape of a meeting and draft copies of the minutes were sufficient to satisfy record requests.
¶ 14 On cross-appeal, Mesa contends that (1) on remand, the trial court should limit the penalty period to 1,825 days and group certain requests together, (2) the Zinks are not entitled to penalties for those documents that were released before they filed their lawsuit or for Mesa's delay in producing copies of correspondence with the Zinks, and (3) the trial court erred in holding that Mesa was required to prepare minutes for a Board meeting.
¶ 15 “The PRA is a strongly-worded mandate for broad disclosure of public records.” Rental Hous. Ass'n of Puget Sound v. City of Des Moines, 165 Wash.2d 525, 535, 199 P.3d 393 (2009). It requires each agency to make available all public records for public inspection and copying unless the records fall within specific exemptions. Former RCW 42.17.260(1) (1997). Any person who prevails against an agency in an action seeking the right to inspect or copy public records or the right to receive a response to a public record request in a timely manner is entitled to an award of not less than $5 and not more than $100 for each day he or she was denied the right to inspect or copy the record....
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