Yousoufian v. Office of the King County Executive (2004)
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Case facts and trial court proceeding
Yousoufian had requested records pertaining to King County’s proposed tax to finance the Seattle Seahawks’ new football stadium, Qwest Field. The requested documents included two groups of records: (1) studies concerning how a “fast food” tax used bo finance a new stadium would affect consumers, and (2) records concerning the “Conway Study” relating to economic impacts of sports stadiums. Over a period of several months, the county produced many documents. But Yousoufian believed King County’s response was incomplete and untimely. In particular, Yousoufian sought additional documents relating to the financing of the stadium, but on June 22, 1998, King County informed Yousoufian that it has no documents relating to the financing of stadium studies.
Yousoufian filed a lawsuit on March 30, 2000, in King County Superior Court. During the litigation, King County located more responsive documents, including documents held by King County’s Department of Finance relating to the financing of stadium studies. King County had previously denied having such documents. The trial court determined that the county eventually produced the requested documents. But it concluded that King County’s delays constituted a violation of the PDA. J. Kathleen Learned specifically held that "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."
Yousoufian sought penalties for each day that 18 requested records were wrongfully withheld, calculating 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. The trial court refused to award penalties on a per record basis, however. Instead, it arranged the wrongfully withheld records into ten groups based on time of production and subject matter, determining the award based on those groups but subtracting 527 days from the number of days that the daily penalty was assessed because Yousoufian waited 647 days from the date of King Countys last correspondence until filing a suit. (The trial court concluded that 120 days was a reasonable amount of time to find an attorney and file a lawsuit. The difference between 647 and 120 being the 527 days that the trial judge subtracted from the number of days for the penalty assessment.) The trial court calculated the penalty period at 5,090 days and multiplied that figure by $5 eper day to arrive at an award of $25,440. In sum, Yousoufian received an award of $114,416.26, due to over $82,000 in attorneys fees, over $6,000 in costs.
Court of Appeals proceeding
Yousoufian appealed to Division One of the Washington State Court of Appeals, which affirmed the trial court’s finding--except as to its award of the statutory minimum penalty of $5 per day, in light of King County’s gross negligence. See Yousoufian v. Office of King County Executive, 114 Wn. App. 836, 60 P.3d 677 (Wash. Ct. App. Div. One 2003) (aka “Yousoufian I”). The Washington Court of Appeals applied a de novo standard of review to the trial court’s findings concerning King County’s responsiveness to the PDA request. But it applied an abuse of discretion standard to the trial court’s findings concerning reasonable attorney fees and formulation of the penalties for violating the PDA.
Legal issues
The Public Disclosure Act (PDA) provides, in pertinent part, that it “shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.”
Questions presented to the Washington Supreme Court included: (1) what standard is appropriate for review of assessment of penalties for PDA violations; (2) whether the PDA requires a penalty for each record; (3) whether the trial court erred in reducing the number of penalty days; and (4) whether the trial court was unreasonable in assessing the minimum penalty of $5 per day against King County.
Majority opinion
Chief Justice Gerry Alexander--joined by Justices Susan Owens, Charles Johnson, Bobbe Bridge, and Faith Ireland--rejected the argument of citizen-activist Mr. Armen Yousoufian that the PDA’s penalty provision required offending government agencies to pay a penalty on a per record basis for every day the government agency unlawfully withheld the public records. In any event, Chief Justice Alexander declined to reach the issue of whether a trial court has discretion to impose penalties per record because King County did not cross-appeal the trial court’s ruling in that respect.
Chief Justice Alexander maintained that the statute was ambiguous as to whether it required penalties be assessed on a per record bases for every day the agency withheld public records or whether penalties should be assessed on a per day basis for all records withheld. The Chief Justice asserted that although the PDA’s purpose is to promote access to public records, the statute’s purpose is better served by increasing the penalty based on an agency’s culpability rather than on the size of a plaintiff’s request. Accordingly, Chief Justice Alexander concluded that the PDA did not require King County to pay a penalty for each record it unlawfully withheld from Yousoufian. Instead, the Chief Justice held for the majority that the trial court did not abuse its discretion in holding that King County should only have been fined for each day it unlawfully withheld all the records.
Chief Justice Alexander also concluded that the question of whether the PDA authorizes a trial court to reduce the penalty period is a question of law that is to be reviewed under a de novo standard. Because the PDA unambiguously requires a penalty “for each day,” Chief Justice Alexander concluded that a trial court does not have discretion to reduce the penalty by finding that the plaintiff could have filed suit sooner. Consequently, Chief Justice Alexander concluded that the penalty period should not have been reduced by 527 days.
Finally, Chief Justice Alexander concluded that the minimum penalty of $5 per day was unreasonable in Yousoufian’s case, “considering that the county acted with gross negligence.”
Yousoufian was awarded reasonable attorney fees and costs for his appeal.
Chief Justice Alexander remanded the case to the trial court for imposition of penalties above the statutory minimum for each day Yousoufian was denied access to the requested records, including the 527 days that the trial court had previously excluded.
Concurring: Justice Fairhurst
Justice Mary Fairhurst joined the majority but also wrote a concurring opinion. Justice Fairhurst disagreed with the majority’s leaving open the question of whether the trail court has discretion to assess penalties on a per record basis or to treat multiple requests as a single request. Contrary to the majority, Justice Fairhurst insisted that the PDA requires penalty assessments be based on the number of days a request has been denied by an agency.
Concurring-in-Part & Dissenting in Part: Justice Chambers
Justice Tom Chambers issued an opinion concurring in part and dissenting in part. Justice Chambers agreed with the majority that a trial court’s assessment of penalties for PDA violations is subject to an abuse of discretion standard of review. However, Justice Chambers maintained that the trial court did not abuse its discretion in setting the penalty per day at the statutory minimum of $5. Justice Chambers agreed with the majority on the remainder of issues.
Dissenting-in-Part: Justice Sanders
In his opinion dissenting-in-part, Justice Richard Sanders agreed with the majority that a trial court cannot shorten the penalty period based on when a PDA plaintiff’s claim ripens. However, Justice Sanders criticized the majority for refusing to assess damages based on a per record basis simply because the majority felt that the Legislature could not have intended the statute would yield the size of penalties Yousoufian was seeking. Justice Sanders maintained that the plain language of the statute leads to no other result than requiring government agencies to be forced to pay penalties on a per record basis for each day they withhold those records. According to Justice Sanders, “[t]he bottom line is that the purpose of any penalty is to punish current misconduct sufficiently to deter future misconduct.”
Justice Sanders asserted that even if an agency acts in total good faith but is noncompliant with the PDA, a penalty of at least $5 per day, per document is required. But “one cannot justifiably impose the same minimal penalty against a negligent agency, much less an agency that is grossly negligent, or worse yet, intentionally violative of the PDA’s requirements for substantial harm.” Justice Sanders inssited the default penalty from which the trial court should use its discretion ist he half-way point of the legislatively-established range: $52.50 per day, per document. Trial courts can then apply various criteria to shift that penalty default upward or downward. Justice Sanders relied on six factors recommended by Yousoufian and concluded that a penalty in the upper range (near $100 per day) was necessary and required to punish King County’s conduct.
Concurring-in-Part in the Dissent: Justice Madsen
Justice Barbara Madsen wrote a two-sentence opinion concurring in part in the dissent: “I agree with the dissent that [the PDA] provides for a per record penalty. I agree with the majority’s resolution of the remaining issues.”
Related published opinions in the case
- Yousoufian v. Office of King County Executive, 114 Wn. App. 836, 60 P.3d 677 (Wash. Ct. App. Div. One 2003) (Yousoufian I)
- Yousoufian v. Office of Ron Sims, 137 Wn. App. 69, 71-75, 151 P.3d 243 (Wash. Ct. App. Div. One 2007) (Yousoufian III)
- Yousoufian v. Office of Ron Sims, No. 80081-2, 2009 Wash.LEXIS 4 (Wash. 2009) (Yousoufian IV)
County files appeal
On April 1, 2009, King County asked the Washington State Supreme Court to re-hear the case. The basis for their request is that claim that justice Richard Sanders was prejudiced in his opinion about the case because at the same time he wrote the ruling, Sanders had a public-records lawsuit pending in Thurston County. King County Chief Civil Deputy Prosecuting Attorney Kevin Wright said, "A justice may not define the scope of rights under state law while simultaneously seeking to personally benefit from that law in other litigation."[1]
The county is asking the high court to re-hear the case, substituting a temporary justice in the place of Sanders. Since six justices on the nine-justice court agreed with Sanders, it isn't clear that substituting a replacement justice for Sanders on the court would change the outcome. [1]
Sanders' response
Sanders denies wrongdoing. He consulted with the court's ethics attorney before hearing Yousoufian. Sanders also says that he will not financially benefit from any additional fines imposed in the Thurston case, so that he does not have a financial conflict-of-interest.
Seattle lawyer Thomas Fitzpatrick, a member of a committee that reviews the canons of the state's Code of Judicial Conduct, said Sanders does not have the type of financial interest in the Yousofian case that would have constrained him for hearing it. "He's not a party or related to a party in the case. To me, this is the kind of situation where [a judge] may want to think long and hard about it. But I don't think it's a violation of the canons."[1]
External links
- "Court decision on public records is mixed," by Maureen O'Hagan, Seattle Times (October 1, 2004).
- Yousoufian on Sunshine Review.
References
- The Washington Supreme Court: A Special Issue Report, by David K. DeWolf, Andrew C. Cook, and Seth L. Cooper (September 26, 2006).
- Public Records Act Deskbook: Washington’s Public Disclosure & Open Public Meetings Laws (Greg Overstreet, ed.) (2006).
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