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MRSC In Focus › Open Government Advisor January 2009
 
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MRSC has joined with Ramsey Ramerman, Attorney, Foster Pepper PLLC, to bring you the "Open Government Advisor." The Open Government Advisor will feature periodic articles focusing on open government issues, including issues related to the Public Records Act, Open Public Meetings Act and Public Disclosure Act.*

Supreme Court Reverses the LARGEST Court-Assessed Public Records Act Penalty in Washington State History – Because it was TOO SMALL: What Agencies can Learn

January 2009

By Ramsey Ramerman, Assistant City Attorney, City of Everett

On the 15th of January, the Washington Supreme Court reversed a $124,000 Public Records Act penalty – according to Justice Owens, the largest PRA penalty ever assessed – and returned the case to the trial court for reconsideration. See Yousoufian v. Office of Ron Sims, No. 80081-2 (Wash. Supreme Court, Jan. 15, 2009). To assist the trial court, the Supreme Court offered several “factors” the trial court should consider when determining where on the $5-to-$100-per-day range the daily penalty should fall. The Court’s reasoning for reversal? – $15 per day to was too low. The decision suggests several steps agencies can take to better comply with the PRA and minimize their liability.

Factual and procedural history

Armen Yousoufian made a request for public records to King County. After being denied records, Yousoufian waited until the end of the 5 year limitation period to file suit. This delay – no fault of the County’s – had the effect of increasing the potential penalty (up to $100 per day). A trial court found that King County had been repeatedly negligent in how it had handled the records request, and that its conduct amounted to a lack of good faith. But, the trial court elected to impose the minimum daily penalty because the court found the minimum amount was sufficient to penalize the County.

On the first trip to the Washington Supreme Court, that Court ruled that given the uncontested finding of a lack of good faith, the minimum penalty was insufficient. It also ruled that the Court could not consider the length of delay in filing suit when calculating penalties because this was a decision the legislature made when it set the statute of limitations (the legislature promptly amended the Public Records Act (“PRA”) to reduce the statute of limitations to one year). The Supreme Court refused to adopt any standards to guide the trial court on remand, other than holding that the minimum penalty should be reserved for instances where an agency acts in good faith.

Supreme Court adopts factors to guide trial courts in imposing penalties

On remand, the trial court calculated the penalty at $15-per-day and imposed a $124,000 penalty, which amounted to the largest court-assessed PRA penalty in the state’s history. Yousoufian was not satisfied and appealed, again. The Supreme Court reversed the trial court a second time and remanded for a new (third) hearing on penalties.1 In a fractured opinion, the Court suggested numerous factors that a trial court should consider when imposing penalties. These factors can be broken down into 10 factors:

  1. Clarity of PRA request
  2. Promptness of agency’s response (including requester’s need for the records)
  3. Strict compliance with procedures and exemptions
  4. Training and supervision of staff
  5. Reasonableness of explanation for noncompliance
  6. Agency attitude: whether the agency was helpful, negligent, reckless, dishonest, or acted in bad faith
  7. Agency’s tracking procedures
  8. Potential for harm, including economic loss and loss of government accountability
  9. Deterrence effect of penalty based on size
  10. Specific facts of the case

Three steps agencies can take to minimize liability

These factors suggest three steps an agency can take to minimize its liability, should a court find the agency violated the PRA.

First, make sure agency staff approach their duties with the attitude that they are serving the public when responding to public records requests. And a good attitude starts at the top – agency executives need to put appropriate priority in the agency’s PRA compliance program. Every agency employee who works with public records should be encouraged to read and re-read RCW 42.56.030, dictating: “The people of this state do not yield their sovereignty to the agencies that serve them.”

Second, make sure agency staff is fully trained in the PRA. A properly trained staff will more quickly respond, fully comply with statutory requirements, and, only withhold records on supportable grounds.

Third, agencies must adopt and enforce comprehensive PRA rules and procedures. The Supreme Court emphasized that the agency’s procedures must provide for the fullest assistance to requesters. The procedures should go beyond the minimum statutory requirements and address how communications with the requester will be handled, how searches should be conducted and how requests will be tracked.

More important than simply giving an agency a good argument that the minimum penalty should apply after a violation, these steps will help ensure that requests are handled properly and there is no violation in the first place.

Some of the Court’s factors lack statutory support and conflict with established law

Some of the Court’s factors are particularly problematic for agencies. Specifically, the Court’s ruling that a trial court should consider the requester’s need and the potential harm seems to conflict with the well-established rule that agencies are prohibited from requiring a requester to explain why the requester wants the records. Thus, the Court holds that penalties should be increased for factors that the agency has no control over and may not even know. It also seems to suggest that requesters should be treated differently, depending on why they need the records. This conflicts with another well-established rule – that all requesters should be treated the same.

The Court’s holding that to be an effective deterrent, an agency’s size should be taken into account, suggests that larger agencies should pay higher penalties than smaller agencies. There is no statutory justification for this distinction.

As a side note, imbedded in the five different opinions from the Supreme Court’s justices is interesting debate about whether the appellate courts should express opinions about what the appropriate penalty should be. The four justices in the lead opinion suggest that a penalty “at the high end of the range” was appropriate. The five remaining judges (two concurring and three dissenting) held that it was not appropriate for appellate courts to provide such specific guidance.

For more information on the Open Public Meetings Act and the Open Records Act, see the following MRSC webpages:



1While the Court listed 16 factors, because of overlap, they can be summarized in 10 factors listed above. The 16 factors were broken into seven mitigating factors and nine aggravating factors. The mitigating factors were: (1) the lack of clarity of the PRA request; (2) an agency’s prompt response or legitimate follow-up inquiry for clarification; (3) good faith, honest, timely, and strict compliance with all the PRA procedural requirements and exceptions; (4) proper training and supervision of personnel; (5) reasonableness of any explanation for noncompliance; (6) helpfulness of the agency to the requestor; and (7) the existence of systems to track and retrieve public records. The aggravating factors were: (1) a delayed response, especially in circumstances making time of the essence; (2) lack of strict compliance with all the PRA procedural requirements and exceptions; (3) lack of proper training and supervision of personnel and response; (4) unreasonableness of any explanation for noncompliance; (5) negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA; (6) dishonesty; (7) potential for public harm, including economic loss or loss of governmental accountability; (8) personal economic loss; and (9) a penalty amount necessary to deter future misconduct considering the size of the agency and the facts of the case.

Ramsey Ramerman, is an assistant city attorney with the City of Everett, where he assists the City with open government issues and appeals. In addition to his work at the City, Ramsey regularly provides open government training for local governments and presents at conferences on open government issues. Ramsey is also one of the founders of the recently formed Washington Association of Public Records Officers. Finally, Ramsey serves as the local government representative on the State Sunshine Committee, currently reviewing the over 300 exemptions to the Public Records Act. Prior to joining the City of Everett, Ramsey practiced at Foster Pepper PLLC as part of the firm's Municipal Group.

*The Articles appearing in the "Open Government" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.