Archive for the ‘Justice Richard Sanders – Did Not Participate’ Category

WA Supreme Court: Failure to Explain Exemption Under PRA is Aggravating Factor

September 16, 2010

 

Sanders v. State

Justice Sanders, who obviously didn’t participate in this (especially after the Yousoufian debacle), brought a PRA request. In their response, they listed exemptions, but failed to provide an explanation of how the exemption applied under the Public Records Act. A twist to this involves Sanders’ counsel, who accepted a pile the AGs office compiled for a wider PRA request. The court identified a few issues. Luckily, the issues breakdown included where the law was going as well. Because its such a monster, I will provide only the brief issue statement and brief conclusion. If you want to know more, you should contact PRA super-guru David Norman, who probably already has this opinion memorized (side note…no way in hell am I taking the time to format this cut and paste job…I do have cases to work on, you know!):

1. Is there a genuine issue of material fact precluding summary judgment as to
 



whether Justice Sanders's attorney agreed to accept the production given to



BIAW as full satisfaction of his PRA request?



Conclusion:  Yes.  The trial court is affirmed on different grounds.  See infra



at pp. 12-14.



2. Did AGO's response violate the PRA if it did not contain a brief explanation



of how its claimed exemptions applied to the records withheld, and if so,



what is the remedy for such a violation?



Conclusion:  Yes.  The remedy is consideration when awarding costs and fees



or when imposing penalties for failure to produce nonexempt records.  The



trial court is affirmed. See infra at pp. 14-18.



3. Did AGO's subsequent production of the SPDs waive objection to or admit



7 The legal issues in this case are numerous, as a consequence of which the
opinion is lengthy.  For ease of reading, we indicate our disposition on each issue and
cross-reference our analysis of it.



-9-



Sanders (Richard B.) v. State, 82849-1



the proposition that the SPDs were nonexempt?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 18-20.



4. For each document withheld, was the failure to produce that document a PRA



violation, i.e., was each document exempt from production?



a. Did the trial judge abuse its discretion  by              considering the State's



Appendix A?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 20-22.



b. Does the attorney-client privilege protect every confidential



communication between lawyers and clients,  once the attorney-client



relationship exists?



Conclusion:  We assume, without deciding, that the privilege protects only



legal advice, and that the trial court interpreted the privilege too broadly.



See infra at pp. 22-23.



c. Did the trial court err in relying on the  "common interest" doctrine,



allowing AGO to claim exemptions for documents it had shared with other



agencies?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 24-25.



d. Did the trial court misinterpret the law when applying the work product



privilege?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 25-29.



e. Did the court err in determining that some documents were exempt?



Conclusion:     Yes, four documents were nonexempt.  The trial court is



-10-



Sanders (Richard B.) v. State, 82849-1



reversed as to these four documents and affirmed as to all others.  See



infra at pp. 29-31.



5. Did the trial court abuse its discretion in setting AGO's penalty?



a. Did the trial court abuse its discretion in assessing the "brief explanation"



penalty as a $3       per  day aggravator to the penalty for wrongfully



withholding documents?



Conclusion:  No.  The trial court is affirmed.  See infra at pp.32-34.



b. Did the trial court abuse its discretion in setting the penalty for failure to



produce nonexempt documents at the bottom of the statutory range?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 34-35.



c. Did the trial court err when, for the purposes of calculating the penalty, it



included the number of days the court took to adjudicate the case?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 35-37.



d. Did the court err in treating the 6-9 wrongfully withheld documents as two



"records" for the purposes of penalties?



Conclusion: No.  The trial court is affirmed.  See infra at p. 37.



e. What penalty applies to the documents deemed nonexempt on appeal?



Conclusion:  The trial court's penalty is appropriate.  See infra at p. 38.



6. Did the trial court abuse its discretion in awarding Justice Sanders 37.5



percent of his fees and costs and in refusing to multiply his fees by 1.5?



Conclusion:  No.  The trial court is affirmed.  See infra at pp. 38-44.



7. Is Justice Sanders entitled to fees and costs on appeal?



-11-



Sanders (Richard B.) v. State, 82849-1



Conclusion:  Yes, to some extent.  See infra at pp. 44-46.

 

 

 

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Posted in Justice Debra Stephens - Draft Majority, Justice Jim Johnson - Did Not Participate, Justice Richard Sanders - Did Not Participate, Justice Tom Chambers - Did Not Participate, Open Government, Pro-Tem Justice - Concur in Majority, Public Disclosure Act, Public Records Act, WA Supreme Court | Leave a Comment »

WA Supreme Court: Yousoufian Round 2 – $45 Per Day Penalty Appropriate for Public Records Violation (Guest Blogger: David Norman)

April 27, 2010

Yousoufian v. Sims

As an added feature to the Amateur Law Professor, we have decided to take the guest-blogger route. Yes, its true. We here at The Amateur Law Professor don’t ACTUALLY know everything. We just try our best. When it comes to the Public Records Act, yours truly, while well versed in the act and having written extensively on it, knows someone who is even more familiar. David M. Norman is an associate at Allied Law Group, and has authored several supreme court, Court of Appeals, and trial briefs on the subject. David and Allied represented numerous newspapers, broadcasters, related trade associations, and non-partisan open government organizations as Amici in Yousoufian v. Office of Ron Sims. Allied Law Group is also active in Lawyers for Government Accountability, a round table of pro-open government attorneys (of which I am also a member).

The latest Yousoufian opinion establishes the standard by which a trial court determines penalties under the Public Records Act, ch. 42.56 RCW. The case began in 1997, when Armen Yousoufian made a PRA request to King County for public records related to a then-upcoming referendum that would ask voters whether the public should finance the construction of what is now Qwest Field. The unchallenged findings of fact established that, in handling Mr. Yousoufian’s request, King County had failed to meet its obligations under the PRA in almost every conceivable way. For example,

“[T]he 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… [T]he county told Yousoufian that information was located elsewhere, when in fact that was not the case.”

2010 WL 1225083 *4. Despite the trial court finding that King County was “negligent” in responding to Mr. Yousoufian’s request “at every step of the way”, it awarded the minimum amount of $5 per day within the PRA’s $5 to $100 per day mandatory penalty entitled to a prevailing requestor. Id.

Eventually, after remand was ordered by the supreme court in 2004, the trial court increased the penalty amount to $15 per day, which totaled $123,780. Mr. Yousoufian again appealed the amount, and the supreme court again agreed, and remanded back to the trial court to recalculate the penalty amount in 2007. King County moved for discretionary review after the 2007 decision, and its motion was granted in 2008. In 2009, the supreme court issued an opinion in January that was later recalled. Oral argument was held yet again after the recall, and the Court issued likely its final opinion in the case in March of 2010.

The court’s opinion focuses on the second aspect of the two-part procedure for determining the appropriate penalty against an agency in a PRA case. Step one is to determine the number of days the requestor was denied access to their requested records. The number of denial days is largely a factual determination that is rarely ever at issue, and at this point was not at issue in Yousoufian. Step two is to determine the appropriate amount of penalty to be awarded to a prevailing requestor on the PRA’s mandatory $5 to $100 per day continuum.

In making its determination, the supreme court first recognized that a trial court must consider the entirety of the PRA’s penalty range, but at the same time concluded that it would be inappropriate for it mandate that a trial court start in the middle of the range—thus rejecting arguments raised by amici that a trial court should begin its penalty amount determination at $52.50 and then adjust upwards or downwards according to the unique facts of a given case. Id. at *10.
Ultimately, the court adopted, as it had before, a multi-factor, highly-discretionary approach, comprised of a series of mitigating and aggravating non-exclusive factors that a trial court may consider in determining a penalty award. The court was particularly careful in emphasizing a trial court’s discretion on the issue, and pointed out that the following list of factors “are offered only as guidance” and also that “no one factor should control.” Id. at *11.

The mitigating factors—i.e., those that would tend to lower the penalty amount—are:

• A lack of clarify in the PRA request;
• The agency’s prompt response or legitimate follow-up inquiry for clarification;
• The agency’s good faith, honest, timely, and strict compliance with all PRA procedural requirements and exceptions;
• Proper training and supervision of the agency’s personnel;
• The reasonableness of any explanation for noncompliance by the agency;
• The helpfulness of the agency to the requestor; and
• The existence of agency systems to track and retrieve public records.

Id. at *10.

The aggravating factors—i.e., those would tend to increase the penalty amount—are:

• A delayed response by the agency, especially in circumstances making time of the essence;
• Lack of strict compliance by the agency with all the PRA procedural requirements and exceptions;
• Lack of proper training and supervision of the agency’s personnel;
• Unreasonableness of any explanation for noncompliance by the agency;
• Negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency;
• Agency dishonesty;
• The public importance of the Issue to which the request is related, where the importance was foreseeable to the agency;
• Any actual personal economic loss to the requestor resulting from the agency’s misconduct, where the loss was foreseeable to the agency;
• A penalty amount necessary to deter future misconduct by the agency considering the size of the agency and the facts of the case.

Id. at *11.

Instead of risking yet another trip through the trial court and the court of appeals, the supreme court applied the above factors to conclude that a $45 per day penalty against King County was appropriate in Yousoufian. However, in doing so, the Court emphasized that an appellate court determining the penalty should definitely be the exception to the rule, and that if not for the lengthy and tortured procedural history of the case, it would have normally remanded back to the trial court. Id.

From the perspective of a requestor under the PRA, the latest Yousoufian opinion is helpful but still problematic for several reasons. The opinion is helpful in that it distills several of the factors used by prior courts in determining an appropriate penalty amount, and now gives express approval by the state’s highest court to certain factors that a trial court may consider. There is some ambiguity in the court’s adoption of a “factor” test. However, aspects of the opinion suggest that some factors are in reality closer to elements. This appears to be particularly true as to the court’s discussion of the “deterrence” factor, where the court seems to say that a trial court must consider how the penalty it sets will deter future violations of the PRA – at least in cases with factors similar to Yousoufian.

The main problem with the opinion is that the court’s conclusion that $45 a day is an appropriate penalty for the actions of King County, which fell just short of willful and malicious non-compliance with the records request, is troubling. Arguably, the opinion precludes a requestor from receiving a penalty more than $45 in all but the most egregious – if not unprecedented — scenarios of agency intransigence [ed. - Dave's vocabulary is off the charts. Intransigence simply means failing to back off of an extreme position.]

Moreover, the penalty amount set by the court in Yousoufian seems to be at odds with the court’s own instruction to trial courts that they must consider the entire penalty range. Despite it’s own precedent, the court did not address the vast majority of the factors it delineated and did not illustrate or apply mitigating factors that could justify a penalty falling closer to the minimum than the maximum amount against the most populous county in the state. In this regard, the court’s conclusion as to the appropriate amount seems to contravene the explicit purpose and policy of the PRA to liberally construe all provisions in favor of disclosure, compensate members of the public who are compelled to hire counsel to access non-exempt public records, and to punish agencies that violate the PRA.

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Posted in Guest Blogger, Justice Debra Stephens - Did Not Participate, Justice Gerry Alexander - Draft Majority, Justice Richard Sanders - Did Not Participate, Justice Sue Owens - Draft Dissent, Open Government, Pro Tem Justice - Concur in Dissent, Pro-Tem Justice - Concur in Majority, Public Disclosure Act, Public Records Act, WA Supreme Court, Washington Legal News | Leave a Comment »

WA Legal Roundup – Washington State Supreme Court

October 15, 2009

City of Federal Way v. Koenig

This is a fairly simple case. Courts are not agencies under the PRA. Thus, a public records request for court documents may be denied, as court records do not fall within the ambit of the PRA. This is keeping in line with the previous decided Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986).

I feel bad that this was so short. To make up for it, I’ll give you some non-sequitur humor: A bear eating a dolphin.

Painting-dolphin vs bear

(Art by Jeremy Scheuch)

Posted in Chief Justice Barbara Madsen - Did Not Participate, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Draft Dissent, Justice Gerry Alexander - Concur in Dissent, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Did Not Participate, Justice Sue Owens - Draft Majority, Justice Tom Chambers - Concur in Majority, Open Government, Pro Tem Justice - Draft Concurrence, Pro-Tem Justice - Concur in Majority, Public Disclosure Act, WA Supreme Court | Leave a Comment »

WA Legal Roundup – Washington State Supreme Court

August 24, 2009

Morgan v. City of Federal Way

Morgan wanted to fight the release of a report under the PRA. The contents of the report involved investigation of a hostile work environment, which Morgan had attempted to stop. Morgan also attempted to claim that the investigation by the City Attorney’s Office created a hostile work environment for him.

There’s a really good joke in there. Its time’s like this I wish I had the wit and wisdom of the writers at What Would Tyler Durden Do? Alas, I think publicly making sex jokes about a Judge might just be…well…uncouth.

Held: The report doesn’t fall under an attorney-client privilege exemption. The city attorney was investigating Morgan, not acting as his counsel. The personal information exemption allows disclosure to be withheld if the allegations are unsubstantiated. Unfortunately, simply saying I disagree does not mean its unsubstiantiated.

The Stephson Report evaluates each person’s credibility and concludes that many of the allegations are likely true, unlike in [Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 189 P.3d 139 (2008)], where the allegations were found to be unsubstantiated. Judge Morgan also fails to demonstrate how his behavior in the workplace is not of legitimate concern to the public and the voters.

Posted in Chief Justice Barbara Madsen - Did Not Participate, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Concur in Majority, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Did Not Participate, Justice Sue Owens - Draft Majority, Justice Tom Chambers - Concur in Majority, Open Government, Pro-Tem Justice - Concur in Majority | Leave a Comment »

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