Opinion Information Sheet
| Docket Number: | 80081-2 |
| Title of Case: | Yousoufian v. Office of Ron Sims |
| File Date: | 03/25/2010 |
| Oral Argument Date: | 09/22/2009 |
| Appeal from King County Superior Court | |
| 00-2-09581-3 | |
| Honorable Michael C Hayden | |
| Barbara A. Madsen | Signed Dissent | |
| Charles W. Johnson | Signed Majority | |
| Gerry L. Alexander | Majority Author | |
| Richard B. Sanders | Did Not Participate | |
| Tom Chambers | Signed Majority | |
| Susan Owens | Dissent Author | |
| Mary E. Fairhurst | Signed Dissent | |
| James M. Johnson | Signed Majority | |
| Debra L. Stephens | Did Not Participate | |
| Karen G. Seinfeld, Justice Pro Tem. | Signed Dissent | |
| J. Dean Morgan, Justice Pro Tem. | Signed Majority |
Counsel for Petitioner(s) | |
| Stephen Paul Hobbs | |
| Office of the Prosecuting Attorney | |
| 516 3rd Ave Rm W400 | |
| Seattle, WA, 98104-2385 | |
Counsel for Respondent(s) | |
| Michael G Brannan | |
| Law Ofc of Michael G Brannan | |
| 555 Dayton St Ste H | |
| Edmonds, WA, 98020-3601 | |
| Rand F. Jack | |
| Brett & Coats | |
| 1310 10th St Ste 104 | |
| Po Box 4196 | |
| Bellingham, WA, 98227-4196 | |
Amicus Curiae on behalf of Allied Daily Newspapers of Washington | |
| Michele Lynn Earl-Hubbard | |
| Allied Law Group, LLC | |
| 2200 6th Ave Ste 770 | |
| Seattle, WA, 98121-1855 | |
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
ARMEN YOUSOUFIAN, )
) No. 80081-2
Respondent, )
)
v. ) En Banc
)
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. )
_______________________________ ) Filed March 25, 2010
ALEXANDER, J.?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.
1The legislature recodified the provisions in chapter 42.17 RCW pertaining to
public records at chapter 42.56 RCW. Laws of 2005, ch. 274, § 1. This opinion refers
to the new chapter by its preferred name, the ?Public Records Act.? RCW 42.56.020.
No. 80081-2
I
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 Wn.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.
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) ??[a]ll 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
2The findings of fact entered by King County Superior Court Judge J. Kathleen
Learned have subsequently been set forth in three published appellate opinions. See
Yousoufian v. Office of King County Executive, 114 Wn. App. 836, 840-46, 60 P.3d 667
(2003) (Yousoufian I), aff?d in part, rev?d in part, 152 Wn.2d 421, 98 P.3d 463 (2004)
(Yousoufian II); Yousoufian v. Office of Ron Sims, 137 Wn. App. 69, 71-75, 151 P.3d
243 (2007) (Yousoufian III), aff?d in part, rev?d in part, 165 Wn.2d 439, 200 P.3d 232
(Yousoufian IV), recalled, Supreme Court Order No. 80081-2 (June 12, 2009). These
findings also formed the basis for the ruling of King County Superior Court Judge
Michael Hayden, who was assigned to this matter on remand due to Judge Learned?s
retirement from the King County Superior Court. Clerk?s Papers at 124.
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No. 80081-2
access to a 1994 ?Conway study,? absent attachments, one day before he filed his PRA
request.
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 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.
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.
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No. 80081-2
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.
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.
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.
4
No. 80081-2
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 ?[i]t
was not reasonable to ask Mr. Yousoufian where to search for the documents
responsive to his request.? Id. at 36.
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 again he failed to provide cost
5
No. 80081-2
documentation.
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.
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.
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
6
No. 80081-2
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.
On December 15, 1997, John Wilson, Executive Sims?s chief of staff, wrote
Yousoufian?s attorney and stated that the cost information provided by Woo satisfied
Yousoufian?s request. Wilson told Yousoufian to direct any further requests for
information to the public facility district. On December 31, Yousoufian?s attorney sent
another letter to the county to explain that Yousoufian?s request had not been
adequately answered. Oma LaMothe responded on January 14, 1998, stating that the
county was responsible only for providing documents within its office and that
??hundreds of hours?? had already been spent responding to Yousoufian?s PRA request.
Id. at 39. The trial court found LaMothe?s response to be ?factually and legally
incorrect.? Id.
Yousoufian?s attorney wrote back to the county on March 6, 1998, reiterating the
PRA request and inquiring into what, if any, exemptions the county might be claiming
and whether any other agency might have the documents Yousoufian had requested.
LaMothe responded and advised the attorney to write the county?s finance department.
Although Yousoufian?s attorney did so, the finance department claimed it did not
receive the letter. Yousoufian?s attorney sent the letter again. LaMothe wrote back on
June 22, this time as a representative of the finance department, stating that the
department did not have the requested documents. The trial court found that the
7
No. 80081-2
finance department did have the records.
Yousoufian filed this lawsuit on March 30, 2000. In February 2001, Pat Steele,
who was recruited by the county to assist in locating documents responsive to
Yousoufian?s request, located more responsive documents. Those documents included
records in the finance department relating to the financing of stadium studies. These
documents had not been disclosed earlier and no evidence was presented by the
county to explain why they could not have been provided in 1997.
By June 8, 2001?more than four years after Yousoufian submitted his initial
request and over a year after he filed this lawsuit?Yousoufian received all of the
studies and cost documentation he had originally requested.
It is fair to say that the unchallenged findings of fact demonstrate that over a
period of several years the county repeatedly failed to meet its responsibilities under
the PRA with regard to Yousoufian?s request. Specifically, the county told Yousoufian
that it had produced all the requested documents, when in fact it had not. The county
also told Yousoufian that archives were being searched and records compiled, when
that was not correct. In addition, the county told Yousoufian that information was
located elsewhere, when in fact that was not the case. After years of delay and
misrepresentation on the part of the county, Yousoufian found it necessary to file suit
against the county in order to obtain all of the requested documents. Nevertheless, it
would still take another year for the county to completely and accurately respond to
Yousoufian?s request. As the trial court found, the county ?failed to correctly interpret
8
No. 80081-2
and respond to Mr. Yousoufian?s [PRA] request? and ?was untimely and unreasonable
in its interpretation of and response to Mr. Yousoufian?s [PRA] requests.? Id. at 41, 31.
Additionally, it found that ?[w]ith proper diligence, all of the material untimely provided
could and should have been provided in June or December of 1997.? Id. at 41.
Based on the aforementioned findings of fact, the trial court concluded that ?the
County was negligent in the way it responded to Mr. Yousoufian?s [PRA] request at
every step of the way, and this negligence amounted to a lack of good faith.? Id. at 46.
The court also determined that the county could have complied with Yousoufian?s PRA
request within ?five [business] days? following Yousoufian?s initial request, but
nevertheless concluded that the county did not act in ??bad faith? in the sense of
intentional nondisclosure.? Id. at 45.
The trial court calculated the per day penalty at $5 and the penalty period at
5,090 days. It multiplied those figures to arrive at a total penalty of $25,440. CP at 59.
In determining the penalty period, the trial court categorized the wrongfully withheld
records into 10 groups and subtracted 527 days from the cumulative number of days
late for each of the 6 groups that were produced after the lawsuit was filed.3 Through
this formula, the trial court subtracted 3,162 days from the total number of days late of
8,252, calculating a penalty period of 5,090 days.
3The trial court determined that 647 days passed between the date of the last
letter from the county to Yousoufian prior to the commencement of this lawsuit and the
date Yousoufian filed suit. It allowed 120 days as a reasonable amount of time for
Yousoufian to find an attorney to represent him in this lawsuit. Subtracting 120 days
from 647 days, the trial court arrived at the figure of 527 days.
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No. 80081-2
Yousoufian appealed this decision, and the Court of Appeals reversed the per
day penalty, holding the court abused its discretion in awarding the statutory minimum
in light of the county?s ?gross negligence.? Yousoufian v. Office of King County
Executive, 114 Wn. App. 836, 854, 60 P.3d 667 (2003) (Yousoufian I), aff?d in part,
rev?d in part, 152 Wn.2d 421, 98 P.3d 463 (2004) (Yousoufian II).4 It upheld the trial
court?s grouping of records and its subtraction of days from the penalty period. Id. at
849-51.
On review, this court agreed with the Court of Appeals that the $5 daily penalty
?was unreasonable considering that the county acted with gross negligence? but held
the Court of Appeals erred in affirming the trial court?s reduction of the penalty period.
Yousoufian II, 152 Wn.2d at 439. We remanded the case to the trial court for the
imposition of penalties above the statutory minimum for each day the requested
records were wrongfully withheld, including the days subtracted from the penalty period
by the trial court, and for determination of attorney fees and costs for the appeal.
On remand, the trial court calculated the PRA penalty at $15 per day and
multiplied this figure by the 8,252 penalty days5 to arrive at a total penalty of $123,780.
4As correctly noted by the trial court in its order on remand: ?The Court [of
Appeals] found that the ?factual and legal misrepresentations the County made were
grossly negligent? and attributed the finding to [the original trial court?s]
?characterization? of the County?s conduct although the term ?gross negligence? does not
appear in the trial court order.? CP at 125 (quoting Yousoufian I, 114 Wn. App. at 853-
54).
5The trial court on remand arrived at 8,252 days by adding 3,162 days to the
penalty period of 5,090 days calculated by the original trial court. In Yousoufian II, our
court reinstated the 3,162 days the original trial court subtracted from the total days late
10
No. 80081-2
Yousoufian appealed the daily penalty amount, and the Court of Appeals again
reversed. Yousoufian v. Office of Ron Sims, 137 Wn. 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 Wn.2d 1011, 175 P.3d 1095 (2008).
Our opinion in this appeal was filed on January 15, 2009, and became final on
February 4. Yousoufian v. Office of Ron Sims, 165 Wn.2d 439, 200 P.3d 232
(Yousoufian IV), recalled, Supreme Court Order No. 80081-2 (June 12, 2009). Our
mandate issued on February 9. Supreme Court Mandate No. 80081-2 (Feb. 9, 2009).
On April 1, the county moved this court to recall our mandate in Yousoufian IV. With
Justices Richard Sanders and Debra Stephens recused, and Judge Karen Seinfeld
sitting as a justice pro tempore, we granted the county?s motion in part, recalled the
mandate, and ordered this matter ?set for oral argument in due course.? Supreme
Court Order No. 80081-2 (June 12, 2009). Justice Sanders later recused himself ?from
consideration of any further matter in this proceeding.? Supreme Court Mem. on
Recusal No. 80081-2 (July 2, 2009).
II
?[T]he trial court?s determination of appropriate daily penalties is properly
reviewed for an abuse of discretion.? Yousoufian II, 152 Wn.2d at 431. A trial court
to arrive at the penalty period. Yousoufian II, 152 Wn.2d at 438 (holding that ?the
[PRA] does not allow a reduction of the penalty period when the trial court finds the
plaintiff could have filed suit earlier than it did?). The parties do not challenge the
penalty period of 8,252 days calculated by the trial court on remand.
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No. 80081-2
abuses its discretion if its decision is manifestly unreasonable or based on untenable
grounds or reasons. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115
(2006). A trial ?court's decision is ?manifestly unreasonable? if ?the court, despite
applying the correct legal standard to the supported facts, adopts a view ?that no
reasonable person would take.??? Id. (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71
P.3d 638 (2003) (quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141
(1990))).
III
Determining a PRA penalty involves 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.? Yousoufian II, 152 Wn.2d
at 438 (citing Lindberg v. Kitsap County, 133 Wn.2d 729, 749, 948 P.2d 805 (1997)
(Durham, C.J., dissenting)). The first step has been decided, and we have not been
asked to reconsider that determination. We are, however, reviewing the second
step?whether the Court of Appeals correctly concluded that on remand the trial court
abused its discretion in setting the penalty at $15 per day.
The lengthy procedural history of this case is illustrative of the challenge faced
by trial courts performing the second step of a PRA penalty analysis. This difficulty
arises in part because the PRA provides no specific indication of how a standard range
penalty is to be calculated.6
6RCW 42.56.550(4) provides: ?Any person who prevails against an agency in
any action in the courts seeking the right to inspect or copy any public record or the
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No. 80081-2
Our court has stated that the PRA penalty is designed to ??discourage improper
denial of access to public records and [encourage] adherence to the goals and
procedures dictated by the statute.?? Yousoufian II, 152 Wn.2d at 429-30 (alteration in
original) (quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 140, 580 P.2d 246 (1978)).
?When determining the amount of the penalty to be imposed ?the existence or absence
of [an] agency's bad faith is the principal factor which the trial court must consider.??
Amren v. City of Kalama, 131 Wn.2d 25, 37-38, 929 P.2d 389 (1997) (alteration in
original) (quoting Yacobellis v. City of Bellingham, 64 Wn. App. 295, 303, 825 P.2d 324
(1992)). However, no showing of bad faith is necessary before a penalty is imposed on
an agency and an agency's good faith reliance on an exemption does not insulate the
agency from a penalty. Id. at 36-37.
There are other considerations that bear on the determination of a penalty in
addition to good faith or bad faith. They are factors, discussed below, relating to the
basis for setting PRA penalties: agency culpability. See Yousoufian II, 152 Wn.2d at
435 (?the [PRA?s] purpose [of] promot[ing] access to public records . . . is better served
by increasing the penalty based on an agency?s culpability?).
In setting the penalty on remand at $15 per day, the trial court relied on
American Civil Liberties Union v. Blaine School District No. 503, 95 Wn. App. 106, 975
right to receive a response to a public record request within a reasonable amount of
time shall be awarded all costs, including reasonable attorney fees, incurred in
connection with such legal action. In addition, 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.?
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No. 80081-2
P.2d 536 (1999) (ACLU), analogizing the county's conduct here to that of the Blaine
School District in that case. CP at 127. In ACLU, the records showed that the Blaine
School District had refused to mail certain documents to the ACLU based on its
incorrect interpretation of the PRA. The Blaine School District, instead, indicated that
the requested documents would be available for viewing during business hours.
Although the trial court set the penalty for the violations at $5 per day, the Court of
Appeals vacated the award and set the penalty at $10 per day on the basis that ?it
[was] clear that the District did not act in good faith.? Id. at 115.
We do not find ACLU to be analogous to the present case because the school
district?s conduct in ACLU, promptly making records available but refusing to mail them,
is fundamentally different from the county's conduct in the instant case. Moreover, as
the Court of Appeals correctly concluded in Yousoufian III, a strict and singular
emphasis on good faith or bad faith is inadequate to fully consider a PRA penalty
determination after our decision in Yousoufian II. Yousoufian III, 137 Wn. App. at 78-
79.7 Thus, the trial court should not have viewed ACLU as guiding precedent in
calculating the penalty here.
In addition to ACLU, the trial court was guided by consideration of two factors:
economic loss to the party requesting the documents and the public importance of the
7The Court of Appeals accurately observed: ?[A] simple emphasis on the
presence or absence of the agency's bad faith does little more than to suggest what the
two poles are on the penalty range and is inadequate to guide the trial court's
discretion in locating violations that call for a penalty somewhere in the middle of the
expansive range the legislature has provided.? Yousoufian III, 137 Wn. App. at 78-79.
14
No. 80081-2
underlying issue to which the request relates. As to the first factor, in Amren, our court
stated that economic loss is a relevant consideration. Amren, 131 Wn.2d at 38 (citing
Yacobellis, 64 Wn. App. at 303). Yousoufian contends, however, that economic loss
should not be a factor because the purpose of a PRA penalty is to promote access to
public records and government transparency; it is not meant as compensation for
damages. Suppl. Br. of Resp?t at 8-10; see Yousoufian II, 152 Wn.2d at 429, 435; see
also Yacobellis, 64 Wn. App. at 301. We are not persuaded by this argument because
an additional purpose of a PRA penalty, recognized by both parties, is ???to discourage
improper denial of access to public records??? Suppl. Br. of Resp?t at 10 (quoting
Yousoufian II, 152 Wn.2d at 429-30 (quoting Hearst Corp., 90 Wn.2d at 140)).
Accordingly, it is appropriate to increase penalties as a deterrent where an agency?s
misconduct causes a requestor to sustain actual personal economic loss. An agency
should, though, be penalized for such a loss only if it was a foreseeable result of the
agency?s misconduct.8 In short, actual personal economic loss to the requestor is a
factor in setting a penalty only if it resulted from the agency?s misconduct and was
foreseeable. Here, the trial court correctly declined to apply this factor because ?there
8Amici the State of Washington (the State) and Allied Daily Newspapers, et al.
(ADN) contend that personal economic loss should not be a factor in part because it
does not relate to an agency?s culpability. Br. of ADN at 6-7; Amicus Br. of the State at
8, 11-12. We disagree. This factor may relate to an agency?s culpability, and thus is
an appropriate factor, where the agency has knowledge that its misconduct could
potentially cause economic loss to the requestor. Although an agency may generally
not know of the potential for such loss because the PRA provides that requestors ?shall
not be required to provide information as to the purpose for the request,? RCW
42.56.080, it is possible that an agency could acquire such knowledge.
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No. 80081-2
has been no assertion that Mr. Yousoufian sustained any personal economic loss
because of the County?s intransigence.? CP at 126.
As to the second factor, the trial court correctly reasoned that governmental
intransigence on an issue of public importance is a relevant consideration in
establishing the penalty for PRA a violation. Indeed, the county agrees that a penalty
should reflect the significance of the project to which the PRA request relates. We
believe, however, that the county goes too far in suggesting that this factor does not
come into play unless there is actual public harm. Assessing a penalty under the PRA
should not be contingent on uncovering the proverbial ?smoking gun.? See RCW
42.56.030; see also Spokane Research & Def. Fund v. City of Spokane, 155 Wn.2d 89,
100, 117 P.3d 1117 (2005) (?We interpret the [PRA] liberally to promote full disclosure
of government activity that the people might know how their representatives have
executed the public trust placed in them and so hold them accountable.?).
An agency should not be penalized under this factor, however, unless the
significance of the issue to which the request is related was foreseeable to the agency.
Here, the requested records dealt with a $300 million, publicly financed project that was
subject to an upcoming referendum. The importance of the referendum was obvious
and foreseeable to the county when Yousoufian made his initial request; the lack of
actual public harm resulting from the county?s misconduct is irrelevant to its penalty.
Finally, the trial court failed to consider deterrence as a factor in determining the
penalty. As noted, the purpose of the PRA?s penalty provision is to deter improper
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No. 80081-2
denials of access to public records. Yousoufian II, 152 Wn.2d at 429-30. The penalty
must be an adequate incentive to induce future compliance. Yet nowhere did the trial
court mention deterrence. What is more, as Yousoufian points out, the trial court
implicitly averted the deterrence factor by analogizing to ACLU. Br. of Appellant at 16.
In ACLU, the agency in question was a small school district, but here the county is the
most populous county in the state. The penalty needed to deter a small school district
and that necessary to deter a large county may not be the same.
To conclude, the trial court on remand based its assessment on the county's
??gross negligence?? but failed to impose a penalty proportionate to the county's
misconduct. CP at 125. Instead, it imposed a penalty at the low end of the penalty
range. As recognized in Yousoufian II, 152 Wn.2d at 439, such a low penalty is
inappropriate and manifestly unreasonable in light of the county's grossly negligent
noncompliance with the PRA. We hold the trial court on remand abused its discretion
in imposing a penalty of $15 per day.
IV
A
We agree with the Court of Appeals that ?the purposes of the [PRA] would be
better served by providing the trial courts with some guidance as to . . . the [PRA]
penalty range.? Yousoufian III, 137 Wn. App. at 78 (discussing our court?s reference to
culpability in Yousoufian II, 152 Wn.2d at 435). The Court of Appeals proposed tiering
the statutory per day penalty range based on the degrees of culpability found in the
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No. 80081-2
Washington Practice: Washington Pattern Jury Instructions. Id. at 78-80 (suggesting
the culpability tiers provide the baseline from which the trial court applies other factors
to determine the appropriate penalty). As both parties point out, however, the Court of
Appeals? approach is inadequate because culpability definitions do not lend themselves
to the complexity of PRA penalty analysis.
The parties and amicus Allied Daily Newspapers et al. (ADN) agree that a
nuanced multifactor approach is more appropriate to a PRA penalty determination.
Answer to Brs. of Amicus Curiae at 1-3; Resp?t?s Answer to State?s Amicus Br. at 8-9;
Br. of ADN at 19. The county advocates a three-factor framework to penalty
determinations, enumerating eight additional considerations to be included within those
factors. Answer to Brs. of Amicus Curiae at 2-3. Yousoufian proposes a 10-factor
approach. Resp?t?s Answer to State?s Amicus Br. at 8-9. ADN suggests 12 factors. Br.
of ADN at 19.
In contrast, the State of Washington (the State), as amicus, contends that we
should not adopt any factors, asserting in part that ?traditional abuse of discretion
review has well served the [PRA].? Amicus Br. of the State at 4. The State?s argument
is unpersuasive for two reasons. First, only three published cases have reviewed a
PRA penalty for its sufficiency. See Yousoufian II, 152 Wn.2d at 439; Lindberg, 133
Wn.2d at 746-47 (upholding a trial court?s order awarding a combination of attorney
fees and penalties); ACLU, 95 Wn. App. at 115. Given the paucity of published cases
relating to penalty after nearly four decades of PRA case law, the abuse of discretion
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No. 80081-2
standard is insufficient guidance for trial courts.
Second, the State pays insufficient attention to the procedural history of this
case. This is the second time our court has reviewed the sufficiency of the penalty that
has been imposed by the trial court. Furthermore, more than 12 years have passed
since Armen Yousoufian submitted his PRA request to the county and 9 years have
gone by since he filed this lawsuit. This suggests to us that we need to provide
additional guidance on the setting of PRA penalty amounts. Hence, this review
provides an appropriate opportunity to set forth relevant factors for trial courts to
consider in their penalty determination. Cf. Progressive Animal Welfare Soc?y v. Univ.
of Wash., 125 Wn.2d 243, 271-72, 884 P.2d 592 (1994) (declining invitation by both
parties to create a PRA penalty standard because case was before the court on
summary judgment and was remanded by the court for factual determination).
Appellate courts frequently set forth multifactor frameworks to provide guidance
to trial courts exercising their discretion so as to render those decisions consistent and
susceptible to meaningful appellate review. See, e.g., Bowers v. Transamerica Title
Ins. Co., 100 Wn.2d 581, 595, 675 P.2d 193 (1983) (adopting an analytical framework
to calculate reasonable attorney fees under the Consumer Protection Act, chapter
19.86 RCW); Glover v. Tacoma Gen. Hosp., 98 Wn.2d 708, 717, 658 P.2d 1230 (1983)
(identifying factors as proper considerations for trial judges to use in determining
whether settlement agreements involving multiple defendants and contributory fault are
?reasonable? under RCW 4.22.060), overruled on other grounds by Crown Controls,
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No. 80081-2
Inc. v. Smiley, 110 Wn.2d 695, 756 P.2d 717 (1988). Such frameworks are appropriate
where a statute affords discretion to trial judges but fails to adequately guide how such
discretion should be exercised. See, e.g., Bowers, 100 Wn.2d at 594 (noting the
Consumer Protection Act ?provide[d] no specific indication of how attorney fees [were]
to be calculated,? but exhorted courts ?to liberally construe the act, ?that its beneficial
purposes may be served?.?); Glover, 98 Wn.2d at 716 (observing that ?the Legislature
[has] declined to define [the term ?reasonable?]? despite the ?great importance? of the
reasonableness determination ?to both settling and nonsettling defendants?)
Here, as mentioned, the PRA provides no specific indication of how a penalty is
to be calculated. It does, however, provide a ?strongly worded mandate for broad
disclosure of public records.? Hearst Corp., 90 Wn.2d at 127. The PRA directs us to
liberally construe it ?to assure that the public interest will be fully protected.? RCW
42.56.030. Its command is unequivocal: ?Responses to requests for public records
shall be made promptly by agencies . . . .? RCW 42.56.520 (emphasis added).
Additionally, where the PRA is violated, trial courts must award penalties ?at not less
than $5 [per day] but not more than $100 [per day].? Yousoufian II, 152 Wn.2d at 433.
The PRA is a forceful reminder that agencies remain accountable to the people of the
State of Washington:
The people of this state do not yield their sovereignty to the agencies that
serve them. The people, in delegating authority, do not give their public
servants the right to decide what is good for the people to know and what
is not good for them to know. The people insist on remaining informed so
that they may maintain control over the instruments that they have
created. This chapter shall be liberally construed and its exemptions
20
No. 80081-2
narrowly construed to promote this public policy and to assure that the
public interest will be fully protected. In the event of conflict between the
provisions of this chapter and any other act, the provisions of this chapter
shall govern.
RCW 42.56.030. It is therefore proper for us to identify factors that trial courts may
appropriately consider in determining PRA penalties.
At the outset of any penalty determination, a trial court must consider the entire
penalty range established by the legislature. See Laws of 1992, ch. 139, § 8
(amending the penalty from a $25 per day limit to the current $5-$100 per day range).
This eliminates the perception of bias associated with presuming any ?starting point?
within the statutory range for penalty determinations. Such a presumption is
unsupported by the PRA because its penalty provision does not prescribe how trial
courts are to determine a penalty; it merely sets the minimum and maximum per day
amounts. See RCW 42.56.550(4). We accordingly reject the suggestion of ADN that
trial courts should begin their penalty determinations at $52.50, the midpoint of the
statutory range. Br. of Amicus ADN et al. (Aug. 21, 2006) at 16 (quoting Yousoufian II,
152 Wn.2d at 446 (Sanders, J., dissenting)). Trial courts may exercise their
considerable discretion under the PRA?s penalty provisions in deciding where to begin
a penalty determination. RCW 42.56.550(4).9
Turning to the factors, we decline to adopt any of the aforementioned
9Therefore, depending upon the circumstances of a case, it may be within a trial
court?s discretion to begin a penalty determination at the minimum daily penalty amount
of $5, as the county argues trial courts should be free to do. Answer to Brs. of Amicus
Curiae at 6.
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No. 80081-2
frameworks suggested by the parties or ADN, though we do incorporate some factors
from each. In our view, mitigating factors that may serve to decrease the penalty are
(1) a lack of clarity in the PRA request, (2) the agency?s prompt response or legitimate
follow-up inquiry for clarification,1 (3) the agency?s good faith,11 honest, timely, and
strict compliance with all PRA procedural requirements and exceptions, (4) proper
training and supervision of the agency?s personnel, (5) the reasonableness of any
explanation for noncompliance by the agency, (6) the helpfulness of the agency to the
requestor,12 and (7) the existence of agency systems to track and retrieve public
records.
Conversely, aggravating factors that may support increasing the penalty are (1)
a delayed response by the agency, especially in circumstances making time of the
essence,13 (2) lack of strict compliance by the agency with all the PRA procedural
1RCW 42.56.520 gives agencies five days to respond by either producing the
documents, giving a time needed to produce the documents, requesting a clarification
of the request, or denying portions pursuant to exceptions. Furthermore, RCW
42.56.550(2) specifically grants the public the right to ask a court to review an agency?s
inaction if its estimate of the time needed to produce a record is unreasonable.
11Good faith, while not a shield against the imposition of a penalty, is a factor to
be taken into account in setting the amount. Amren, 131 Wn.2d at 38.
12RCW 42.56.100 states that ?rules and regulations shall provide for the fullest
assistance to inquirers and the most timely possible action on requests for information.?
(Emphasis added.)
13For instance, delaying production of documents long past their ability to
influence a public vote defeats the PRA?s purpose of keeping people informed ?so that
they may maintain control over the instruments that they have created.? RCW
42.56.030.
22
No. 80081-2
requirements and exceptions, (3) lack of proper training and supervision of the
agency?s personnel, (4) unreasonableness of any explanation for noncompliance by the
agency, (5) negligent, reckless, wanton, bad faith, or intentional noncompliance with
the PRA by the agency, (6) agency dishonesty, (7) the public importance of the issue to
which the request is related, where the importance was foreseeable to the agency,14 (8)
any actual personal economic loss to the requestor resulting from the agency?s
misconduct, where the loss was foreseeable to the agency, and (9) a penalty amount
necessary to deter future misconduct by the agency considering the size of the agency
and the facts of the case.
Our multifactor analysis is consistent with the PRA and our precedents and
provides guidance to trial courts, more predictability to parties, and a framework for
meaningful appellate review. We emphasize that the factors may overlap, are offered
only as guidance, may not apply equally or at all in every case, and are not an
exclusive list of appropriate considerations. Additionally, no one factor should control.
These factors should not infringe upon the considerable discretion of trial courts to
determine PRA penalties.
B
Where an appellate court holds that a trial court abused its discretion in
awarding a PRA penalty, the usual procedure is to remand to the trial court for
imposition of the appropriate penalty. Nevertheless, in light of the unique
14RCW 42.56.550(3) states that records may not be withheld because they may
cause ?embarrassment to public officials.?
23
No. 80081-2
circumstances and procedural history of this case, we are inclined to set the daily
penalty amount in order to bring this dispute to a close.15 We hold that based upon the
aforementioned factors the appropriate penalty is $45 per day.
We emphasize that it is incorrect to interpret our decision to set the per day
penalty as an invitation from this court to trial courts to accede to having penalties set
at the appellate court level. It is generally not the function of an appellate court to set
the penalty and ?the determination of the appropriate per day penalty is within the
discretion of the trial court.? Yousoufian II, 152 Wn.2d at 439.
V
Yousoufian properly requests an award of attorney fees and costs incurred in
connection with this appeal. RAP 18.1(a); Br. of Appellant at 23. RCW 42.56.550(4)
authorizes ?all costs, including reasonable attorney fees? to be awarded to ?[a]ny
person who prevails? in a PRA case. Because we hold that Yousoufian prevails in his
appeal of the trial court?s decision on remand to set the PRA penalty at $15 per day, he
is entitled to recover reasonable attorney fees and the costs he has incurred in
connection with this appeal.
15At the first oral argument in this matter, both parties asked our court to set the
penalty. Wash. Supreme Court oral argument, Yousoufian v. Office of Ron Sims, No.
80081-2 (Feb. 26, 2008) at 35 min., 30 sec., and 37 min., 35 sec., audio recording by
TVW, Washington State?s Public Affairs Network, available at http://www.tvw.org. At
the second oral argument, Yousoufian renewed his request while the county indicated
that it no longer wanted the penalty to be set by this court. Wash. Supreme Court oral
argument, Yousoufian v. Office of Ron Sims, No. 80081-2 (Sept. 22, 2009) at 36 min.,
50 sec., and 40 min., 25 sec., audio recording by TVW, Washington State?s Public
Affairs Network, available at http://www.tvw.org.
24
No. 80081-2
VI
Finally, we reverse the portion of the Court of Appeals? decision denying the
county?s motion to strike portions of an amicus brief as noncompliant with RAP 9.11
and RAP 10.3. Spokane Research & Def. Fund, 155 Wn.2d at 98 (??[W]e cannot, while
deciding one case, take judicial notice of records of other independent and separate
judicial proceedings . . . .?? (quoting In re Adoption of B.T., 150 Wn.2d 409, 415, 78
P.3d 634 (2003))); id. (??RAP 9.11 restricts appellate consideration of additional
evidence on review.?? (quoting King County v. Cent. Puget Sound Growth Mgmt.
Hearings Bd., 142 Wn.2d 543, 549 n.6, 14 P.3d 133 (2000))); United States v. Hoffman,
154 Wn.2d 730, 735 n.3, 116 P.3d 999 (2005) (amicus briefs must comply with RAP
10.3).
We likewise grant the county?s motion to strike portions of the amicus brief of
ADN filed in this court referencing unpublished superior court decisions. Answer to
Brs. of Amicus Curiae at 8-10; Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 577
n.10, 964 P.2d 1173 (1998) (?Unpublished opinions have no precedential value and,
therefore, we have not considered them.? (citing State v. Bays, 90 Wn. App. 731, 954
P.2d 301 (1998))).
For the same reason, we also grant the parties? motions to strike portions of the
State?s amicus brief citing to and referencing an unpublished superior court decision.
Answer to Brs. of Amicus Curiae at 9-10; Resp?t?s Answer to State?s Amicus Br. at 10
n.3. Consequently, we do not reach Yousoufian?s motion in the alternative for our court
25
No. 80081-2
to take judicial notice of the transcript from the unpublished superior court decision.
Resp?t?s Answer to State?s Amicus Brief at 11.
VII
In conclusion, we affirm but modify the Court of Appeals? decision. Because of
the unique circumstances of this case, we do not remand to the trial court for
redetermination of the penalty. Instead, we set the penalty at $45 per day for 8,252
days. We accordingly award Yousoufian a total PRA penalty of $371,340 plus
reasonable attorney fees and costs incurred in connection with this appeal.
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No. 80081-2
AUTHOR:
Justice Gerry L. Alexander
WE CONCUR:
Justice Charles W. Johnson
Justice James M. Johnson
J. Dean Morgan, Justice Pro Tem.
Justice Tom Chambers
27