Tacoma News Tribune: "Justice delayed justice denied, and justice going backwards"

In today's Tacoma News Tribune:

http://www.thenewstribune.com/2010/03/30/1128593/justice-delayed-justice-denied.html

Justice delayed, justice denied, and justice going backwards

PETER CALLAGHAN; STAFF WRITER
Published: 03/30/1012:05 am

Armen Yousoufian thought he was making a simple request of King County: copies of the economic studies being used to justify a large public investment in a new stadium for the Seattle Seahawks.

Yousoufian was no political activist in 1997. He was a businessman trying to run a hotel in Seattle’s University District. But after he heard then-County Executive Ron Sims cite the studies while campaigning for the stadium, Yousoufian decided he wanted to read them himself.

It wasn’t as simple as he thought. Four years later, long after the stadium won a narrow statewide vote and only after Yousoufian hired an attorney and filed a lawsuit, did the county deliver all the records he had requested. And 13 years will have passed before King County will pay the penalties called for in state law.

Last week’s state Supreme Court decision that awarded the Maury Island man $371,340 plus attorney costs might seem like vindication. The court crafted a set of standards including both mitigating and aggravating factors to decide what records law violations should cost. It then decided the county should pay $45 for every record that it illegally withheld and for every day it withheld them.

But Yousoufian said the ruling is not only a disappointment for him, it represents a weakening of the state public records law.

How so? Because not only did the courts string this case out for so long, but last week’s ruling determined that even a blatant failure to disclose should incur penalties below the midpoint of the law’s range of $5 to $100 per day per record.

It is hard to imagine a public records case where a government performed so poorly. County officials delayed and obfuscated and passed the buck, perhaps because they didn’t know better but more likely because the bureaucrats hoped Yousoufian would go away.

And there is at least a possibility that someone did not want the studies released until after the stadium vote, since politicians were overstating the economic benefits outlined in studies that were sketchy at best and were perhaps intentionally exaggerated.

The first judge sided with Yousoufian, saying the county “was negligent in the way it responded to Mr. Yousoufian’s request at every step of the way, and this negligence amounted to a lack of good faith.”

But that judge set the per-day/per-record fine at just $5. Yousoufian appealed and won. The next judge set the fine at $15 per day and again, Yousoufian thought the fine was inadequate both to discourage government secrecy and encourage regular folks to take on legal challenges.

Yousoufian won again. The state Supreme Court told the lower court to try again but – because of the blatant disregard for the records law – set the penalty at the upper edge of the range. That would have put the fines at close to $800,000.

But that decision was written by Justice Richard Sanders, who had his own public records lawsuit pending. An embarrassed court ordered the case reargued without Sanders.

What was positive in last week’s ruling is that the top court set the penalty itself – an unusual-but-necessary step to keep Yousoufian from having to return yet again to Superior Court. And it gave better guidance to lower courts in setting fines.

But its own application of those standards was puzzling in that the facts of the case met most of the aggravating factors and few of the mitigating factors. That should have led the court to the upper range of the fines, not the lower half.

Even that was done on just a 5-4 vote, with four justices saying the $15 fine should stand.

King County taxpayers, not officials, will pay the fine, and Yousoufian will get some, but probably not all, of his legal fees. But lower-court judges in future cases will look at the $45 level as a ceiling, and regular citizens will find it even harder to afford to challenge government secrecy.

As Yousoufian told an Associated Press reporter about his case: “Who would go through such a journey?”

Peter Callaghan: 253-597-8657

peter.callaghan@thenewstribune.com

blog.thenewstribune.com/politics