Feb 9, 2007: Looking back for perspective on fines

Back on October 3, 2004, the Tacoma News Tribune had the editorial below. It's interesting to look back at the sentiments expressed then about the fines that never got awarded on a per document basis, and therefore were reduced more than twentyfold (due to the original trial judge's grouping over 200 documents into 10 groups for penalty calculation purposes) - and to think about the continuing, virtually daily, violations of the Public Disclosure Act and Open Public Meetings Act that occur throughout Washington State (the PDA and OPMA). As my lawyers and I have said since the original "victory" in 2001, the fines awarded back then, against an agency the size of King County, are woefully inadequate to serve as a disincentive to more such misconduct.

I base the above statements on so many emails I get from folks who send me detailed, credible evidence of their own experiences, plus the contacts to the Washington Coalition for Open Government, whose Board of Directors I am on (www.washingtoncog.org). Between those two, I hear of new cases of citizens not getting documents they know exist approximately weekly. I have no doubt there are many more aggrieved people who don't know of me, or how to contact me, or are not aware of the Washington Coalition for Open Government and are sitting somewhere wondering how to proceed.

Regarding the fines per day issue, and by way of review, here's what happened back in 2001:

As stated in a just published Associated Press article:

"In 2001 Superior Court Judge Kathleen Learned ruled that the delay resulted from incompetence, or "gross negligence," rather than a deliberate attempt to conceal the information, and awarded the minimum fine - $5 for each day of delay.

Even then, she noted, the fine would come to $1.5 million if the computation was for each day that each document was late, so she bundled the documents into groups and assessed $5 a day for each bundle." (emphasis added)

In their 2004 editorial, the Tacoma News Tribune also seems to agree with our position from the outset that the penalty award should have been based on a "per document" fine. That would have resulted in a penalty of $1.5 million to $30 million, based on any daily fine in the statutory range of $5 to $100 per day per record (over 200 separate documents were ultimately produced, while their very existence was denied, for about 1500 days). Instead the fine was assessed per "group" of records - said groups (19 such, then further reduced, illogically, to 10 based on production dates) having been created by the first trial judge, it appears, to reduce the fine from what it otherwise would have been based on the facts.

The just released Associated Press article is at: http://yousoufian.blogspot.com/2007/02/associated-press-coverage-of-latest.html )

The earlier Tacoma News Tribune editorial is below, fyi.

By way of further background on this legal point, we always thought the PDA itself provided for the fine to be "per record" - i.e. per individual record or separate, distinct, distinguishable document. The relevant section of the law, where the penalty is provided, uses the singular. It's the only thing that makes sense - that the fines be related to the number of documents withheld and the amount of time they were held back. Even the original judge's ruling suggested she believed the fine was to be per record, but didn't want to follow it as the fine would be, to her, too high. (The original judge explicitly dicussed the law's "per document" language on page 26 of her opinion, then effectively says she'll not follow it on page 27! - the original opinion is at my website: http://www.armenyousoufian.com/ )

She (the first King County Superior Court judge) said (pg 26, lines 18 - 20): "Washington's Public Disclosure Act mandates a penalty of between $5 and $100 per document per day for each day that documents were improperly withheld from disclosure." But on the next page, she says she won't follow that because "... this results in a penalty totally out of proportion to the County's negligence, the harm done thereby, and any amount needed for deterrence." In effect, she seemed to be deciding she wouldn't follow the law, because she didn't like the resulting level of the fine.

One Supreme Court justice pointed all this out, reading the original judge's own written words out loud, to the TVW cameras for posterity, during the oral argument back in January, 2004.

The Washington Newspapers Publishers Association and the Allied Newspapers Guild also argued in their amicus briefs for fines at the high end of the $5 to $100 scale, and that the fines should always have been per record.

The original trial, or King County Superior Court, judge was eventually overruled and reversed by the Court of Appeals and Supreme Court on the $5 per day penalty amount, and even the increase to $15 per day has now been reversed. But, in the end, a 3 judge panel in the Court of Appeals, and most (but not all) of the nine Supreme Court justices, upheld the grouping approach.

Armen Yousoufian

Ruling weakens public disclosure law
THE NEWS TRIBUNEPublished: October 3rd, 2004 12:01 AM

The state Supreme Court seems to have forgotten the original intent behind the landmark Public Disclosure Act. In 1972, Washington voters approved Initiative 276, which established the act. The goal was to make government accountable and transparent by giving the public access to state and local government records.

The law is supposed to be liberally interpreted in favor of disclosure. Penalties for government agencies that fail to comply with the law are supposed to hurt.

But the Supreme Court has taken some of the sting out of penalties, reducing an incentive for governments to comply in a timely manner with information requests. In a 6-3 ruling last week, the majority allowed King County Superior Court Judge Kathleen Learned to reduce some of the fines to be imposed on King County.

The bottom line is that citizens shouldn't have to sue to get government agencies to follow the law. But that's what Armen Yousoufian, a Vashon Island businessman, had to do to get King County records relevant to the 1997 proposal to use public funds to build Seahawks Stadium. Yousoufian was asking for penalties for each day each of the 228 records was wrongly withheld. Under the law, penalties range from $5 to $100 per day. The total could have been as high as $30 million.

Disappointingly, state Attorney General Christine Gregoire filed a legal brief siding with the county, not with the public's right to have the law vigorously enforced.

Judge Learned refused to use the number of individual records to calculate the amount of the penalty. Instead, she "bundled" the records into 10 groups based partly on subject matter — and sharply reduced the amount of money the county was obligated to pay. Learned concluded that the larger penalty would have been "out of proportion to the county's negligence."

Maybe so. But the prospect of facing stiff fines deters government agencies from ignoring the law. Knowing that the courts will vigorously enforce the act and assess costly penalties is the surest way to keep the public disclosure law from becoming a shadow of its former self.