Courts - Washington Court cuts in half county's fine for FOIA delays $371K is biggest fine ever issued under state's Public Records Act

By Gene Johnson

Associated Press Writer

SEATTLE (AP) -- After tossing out its own landmark Public Records Act ruling last year over a justice's potential conflict of interest, the state Supreme Court issued a new opinion in the case last week -- keeping much of the same reasoning but cutting by about half the fine King County must pay for inexcusable delays in responding to a 1997 request for documents.

The court ruled 5-4 that the county must pay $371,340 to Armen Yousoufian, a Vashon Island businessman who sought copies of economic studies for the then-proposed new Seahawks stadium. The amount tripled the $124,000 award a King County judge had granted, which itself was the biggest fine ever imposed under the law.

Last year, in a ruling by Justice Richard Sanders, the Supreme Court said $124,000 was far too low, and an appropriate award would be closer to $800,000. That court then withdrew that opinion after Sanders was accused of a conflict of interest because he had a public records lawsuit pending against the state. The case was reargued without Sanders, and Thursday's majority opinion was written by Justice Gerry Alexander.

The ruling largely preserved the analysis that Sanders proposed for trial courts to consider in setting fines under the Public Records Act, including whether an agency acted in bad faith, was negligent or failed to train staff in public records disclosure.

But where Sanders' opinion ordered the trial court to set the fine set near the top of the $5-$100 per record, per day penalty called for in the law, the high court this time set the fine itself, ending a decade of litigation. Alexander, joined by Justices Charles Johnson, James Johnson, Tom Chambers and the temporarily sitting Dean Morgan, set the fine at $45 per day for 8,252 days, or $371,340 in all.

Kevin Wright, King County's chief civil deputy prosecutor, called the ruling a "fair resolution of a difficult legal issue," and pointed to improvements the county has made in how it handles and tracks records requests.

But public records activists were baffled at how the case could warrant a penalty below the midpoint of the $5-$100 range, or $52.50 per day.

The county was found to be negligent in having untrained staff handle the request, in providing incorrect information to Yousoufian, and in otherwise taking four years to turn over documents it could have given him in five business days. Judges ruled that the county acted out of incompetence, not bad faith.

"If they give $45 a day fine in this case, when are they ever going to give a high-end penalty?" asked Michele Earl-Hubbard, a Seattle open-government lawyer who wrote friend-of-the-court briefs in the case on behalf of Washington newspapers.

Some open government activists argue that higher fines are necessary to prompt government agencies to obey the law. But Ramsey Ramerman, president of the Washington Association of Public Records Officers, insisted that the Yousoufian case has already prompted jurisdictions around the state to begin earnestly complying with the law.

In a fierce dissent, Justice Susan Owens insisted the King County judge did nothing wrong by setting the fine at $124,000.

"This outsized award tramples the trial court's discretion," Owens wrote.

Yousoufian said he spent 5,000 to 6,000 hours working on the case, and the fine awarded Thursday wasn't worth it -- especially since any legal fees granted by the court likely won't be enough to cover his lawyers' actual expenses.

"Twelve or 13 years, and considering the magnitude of the violations, for it to take this long -- who would go through such a journey?" Yousoufian said.

He's especially disappointed, he said, in how little attention has been paid to what he argues the studies revealed: The economic benefits they projected from the stadium were based on wild assumptions, yet King County leaders repeatedly cited them persuading voters to help Seahawks owner Paul Allen build the $300 million stadium now known as Qwest Field.

"The people voted without knowledge of what those studies said, and it was all for the benefit of a private citizen," Yousoufian said Thursday. "The documents that I wanted to get ultimately revealed the studies were cooked."

Published: Mon, Mar 29, 2010


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