Court decision on public records is mixed

The Washington state Supreme Court released a decidedly mixed opinion on state public-records laws yesterday, ruling that government agencies should face stiff fines for egregious violations, but they also should not necessarily be penalized based on the number of records they fail to disclose.

To advocates of open government, the ruling came as a blow, marking the second time in six months that the high court gave government a break from the full muscle of the state Public Disclosure Act, passed by initiative in 1972.

"The court ... disemboweled the statute to some extent," said Michael Brannan, one of the main lawyers on the case. "This is the foundation of our democracy, and citizens have a right to this stuff."

"I guess my biggest gripe, in a practical sense, is that now agencies who violate the law do not have to pay any more of a penalty for unlawfully denying you one record than they would have for unlawfully denying you 10,000 records," said lawyer Timothy D. Ford, who filed a brief in the case on behalf of the Building Industry Association of Washington.

The ruling stems from the doggedness of Seattle hotelier Armen Yousoufian, who asked King County in May 1997 to provide information on the purported economic benefits of building a new stadium. At the time, the county was pushing the idea, and an initiative vote on providing taxpayer financing for it was scheduled for June. The county told Yousoufian that he couldn't get documents until after the vote.

The initiative passed, and Seahawks Stadium (now known as Qwest Field) opened in 2002.

Meanwhile, Yousoufian was pursuing the records. First, he filed suit in King County Superior Court, where a judge calculated that the county failed to provide him with 116 separate records — some of which the county had initially denied having.

The county was "negligent ... at every step of the way" and showed a "lack of good faith," Judge Kathleen Learned ruled.

The Public Disclosure Act allows a judge to penalize a government agency $5 to $100 per day for each record it fails to timely disclose, the idea being that the threat of penalties acts as a deterrent. Even at the low end of the range, that would have come to a penalty of more than $1.5 million — which Learned felt was too much.

She decided the documents could be bundled together into 18 groups (although she later reduced that to 10) and that the county should be assessed $5 per day per group of documents. She also decided that Yousoufian should be penalized for waiting two years to file the lawsuit, so she deducted days for that. The total fine was $25,440.

Yousoufian appealed the decision until it reached the state Supreme Court.

Yesterday, the court ruled that Learned erred in her arbitrary decision to reduce the penalty because Yousoufian took too long. It also agreed that the county should face more than the $5 minimum penalty.

Based on the rulings, Yousoufian's penalty will be recalculated by the trial court. At $100 per day, the fine could reach $825,000.

Lawyer Patrick D. Brown, who filed a brief in the case on behalf of the League of Women Voters, applauded that part of the decision, saying that courts routinely opt for the easy route and impose the lowest penalty.

"This decision should encourage trial courts to exercise their discretion to impose higher penalties for agency misconduct," he said.

But the state Supreme Court also decided that there was no problem in bundling the documents into groups. To open-public-records advocates, if there's less chance of a penalty, there's less incentive to comply with the law.

"(The penalty provision) was intended to really hurt, to sting the agencies that didn't produce the records properly," Brannan said.

"If you believe, like the people of Washington believe, that government should be open, then these justices are on the wrong side of the law," Ford said.