Yousoufian v. Office of King County Executive

Sanders, J.

(dissenting in part) — The majority’s analysis of the public disclosure act (PDA), chapter 42.17 RCW, though valid in some respects,12 falls woefully short in one: it does not require a per record penalty. I also offer my thoughts on an appropriate penalty for King County’s glaring failure to properly handle Armen Yousoufian’s PDA request.

I

We have consistently recognized the PDA is a “strongly worded mandate for broad disclosure of public records.” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978); see also Amren v. City of Kalama, 131 Wn.2d 25, 31, 929 P.2d 389 (1997); Progressive Animal Welfare Soc’y v. *442Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994) (PAWS II); Spokane Police Guild v. Wash. State Liquor Control Bd., 112 Wn.2d 30, 33, 769 P.2d 283 (1989). The PDA does not equivocate in its directive toward agencies asked by an inquisitive citizen to disclose records: “Responses to requests for public records shall be made promptly by agencies . . . .” RCW 42.17.320 (emphasis added). Yet no matter how strong a mandate or how clear a directive may be, it amounts to nothing more than words on paper unless it is vigorously enforced by an independent judiciary. RCW 42.17.340.

The judiciary is uniquely the diligent citizen’s vehicle to compel obedience to the PDA’s “strongly worded mandate” of full disclosure. Hearst Corp., 90 Wn.2d at 127. The PDA expressly grants original jurisdiction to the superior court to “require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records.” RCW 42.17.340(1). There the citizen may compel public disclosure without fear of the undue burdens generally associated with litigation, as the noncompliant agency must pay the citizen’s costs and reasonable attorney fees incurred to enforce the PDA directive. RCW 42.17.340(4).

However in the eyes of the PDA reimbursement of litigation costs is not enough to ensure government compliance with the full disclosure mandate:

In addition [to awarding the successful litigant costs and reasonable attorney fees], it shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he was denied the right to inspect or copy said public record.

Id. (emphasis added). Yet despite the penalty’s unequivocal deterrent purpose and clear dictate to impose a daily fine for an agency’s denial of the litigant’s “right to inspect or copy said public record,” the majority “conclude[s] that RCW 42.17.340(4) does not require the assessment of per day penalties for each requested record.” Majority at 436 (footnote omitted). The majority asserts a two-fold basis for *443this claim: first, the definitional provision that “the singular shall take the plural... as the context requires,” RCW 42.17.020, and second, the alleged exorbitant penalty that would ensue by imposing a per day, per record penalty. See majority at 434, 436. I disagree.

As with any statute, courts must decline to judicially construe language which is unambiguously plain. Limstrom v. Ladenburg, 136 Wn.2d 595, 606, 963 P.2d 869 (1998). And though a statute is ambiguous when its text is susceptible to two or more reasonable interpretations, and therefore may be judicially construed, a statute is not ambiguous merely because two or more interpretations are conceivable. Shoop v. Kittitas County, 149 Wn.2d 29, 36, 65 P.3d 1194 (2003).

RCW 42.17.340(4) is plain on its face as it requires a penalty for “each day” the agency wrongfully denies the requesting litigant “said public record.” “[S]aid public record” unquestionably references the condition precedent to imposing a penalty: the success of a “person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record.” Id. (emphasis added). Despite RCW 42.17.020’s latitude to sometimes construe singular terms as though they were plural, such command applies only “as the context requires.” RCW 42.17.020 (emphasis added). But by RCW 42.17.340(4)’s clear terms an agency must be penalized every time it wrongfully denies access to “any public record.” The “context” of RCW 42.17.340(4) does not require an interjection of the plural “records” in lieu of the singular “said public record.”

Nor does the majority make logical sense when it permits the trial court to impose merely a per request penalty, much less requires it as the concurrence opines. Compare majority at 436 (PDA does not require a per record penalty) with concurrence at 441 (PDA requires a per request penalty and nothing more).

Here the trial court found 18 records were unlawfully withheld from disclosure pursuant to Yousoufian’s two PDA *444requests. In the majority’s and concurrence’s view, King County would be fined the same amount for providing 17 of the requested records as it would for providing none. Despite the equivalency of the fines, the gravity of the two violations is markedly different. I would venture it is obviously much worse to withhold 18 documents than one, and only a per record penalty reflects this. Or perhaps the enlightened citizen should merely alter his or her approach to file 18 separate requests? The majority offers dicta to counter this possibility, suggesting the trial court possesses the “ability to determine that multiple requests are actually one single request based on the subject matter and timing of the requests.” Majority at 436 n.10. But nothing in the PDA supports this insinuation. Rather it is simply a judicial invention made of whole cloth. Apply the statute!

It also does not follow a priori that an absurdly excessive penalty would ensue if we strictly enforced RCW 42-.17.340(4). Contra majority at 435 (“[I]t seems unlikely that the legislature intended to authorize a penalty that Yousoufian once estimated at between $1,534,855 and $30,697,100, considering that the county did not act in bad faith.”). Elementary statutory construction requires, “[although the court should not construe statutory language so as to result in absurd or strained consequences, neither should the court question the wisdom of a statute even though its results seem unduly harsh.” Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997) (citation omitted). In 2003 alone King County adopted an operating budget basedon over $3 billion in revenue.13 Even assuming King County was penalized the entire amount of what Mr. Yousoufian claimed to be the maximum allowable fine, it would still amount to only one percent of King County’s 2003 operating budget. Docking an agency one percent of its operating budget might be just the necessary medicine to force an agency into full PDA compliance. Moreover the amount at issue in the special election concerning *445Seahawks Stadium (now Qwest Field) was $300 million. A just penalty must reflect these realities.

Certainly if we are predisposed to shield the government from the statutory penalty for its misconduct, anything above a slap on the wrist is excessive. But the bottom line is that the purpose of any penalty is to punish current misconduct sufficiently to deter future misconduct. See Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662, 935 P.2d 555 (1997). Only “ ‘ “strict enforcement” of fees and fines will discourage improper denial of access to public records.’” PAWS II, 125 Wn.2d at 272 (emphasis added) (quoting Progressive Animal Welfare Soc’y v. Univ. of Wash., 114 Wn.2d 677, 686, 790 P.2d 604 (1990) (quoting Hearst Corp., 90 Wn.2d at 140)). I see nothing excessive about imposing a per record, per day penalty.14

II

The majority correctly holds this trial court erred by imposing a minimum penalty of $5 per day, as such a penalty was insufficient in light of King County’s gross negligence. I agree a minimum penalty is plainly insufficient. Rather the plain language of the PDA as well as its purposes demands a penalty closer to $100.

At the expense of repetition, I quote the text of RCW 42.17.340(4) once again: “[I]t shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he was denied the right to inspect or copy said public record.” The “discretion” referenced in the statute is not whether a penalty should be imposed, but rather how much a penalty should be. In other words, RCW 42-.17.340(4) establishes a strict liability penalty within the *446specified range which the trial court must impose if an agency violates the PDA. Amren, 131 Wn.2d at 37 (holding “that when an agency erroneously denies a public record and a party has prevailed against the agency in obtaining a copy of the public record an award is warranted”).

The trial court’s discretion enters only to determine where on the statutory scale the appropriate penalty lies. But we know from Amren that an agency’s good faith reliance on an exemption to the PDA disclosure requirement is insufficient to escape an RCW 42.17.340(4) penalty:

[T]his provision is treated as a penalty which is not dependent upon a showing of an agency’s good or bad faith in its claim of exemptions under the Act. Requiring that an agency act unreasonably before imposing a penalty would be similar to a requirement of bad faith, which is not required under the Act.

Amren, 131 Wn.2d at 37. Thus, even if an agency acts in total good faith but is still noncompliant, a penalty of at least $5 per day, per document is required. RCW 42.17.340(4). If we accept the conclusion that a diligent agency that barely violates the PDA with minimal consequences is still subject to a fine of at least $5, one cannot justifiably impose the same minimal penalty against a negligent agency, much less an agency that is grossly negligent, or worse yet, intentionally violative of the PDA’s requirements to substantial harm.

As such, the default penalty from which the trial court should use its discretion is the half-way point of the legislatively established range: $52.50 per day, per document.15 The trial court could then apply various criteria to shift the per diem penalty up or down.

Mr. Yousoufian suggests the court consider (1) the extent of any intent to withhold documents the agency knows are subject to disclosure, (2) the agency’s failure to adopt and maintain a reasonable indexing system to ensure prompt compliance with the PDA’s requirements, (3) the degree of public concern affected by the disclosure of the documents, *447(4) the need to deter future violations, (5) whether the agency acted in good faith relying on an exemption to the PDA’s requirements or the extent of the agency’s diligence to comply with the PDA request, and (6) any economic loss suffered by the litigant.

Applying the aforementioned criteria, I find a penalty in the upper range to be necessary here. Time is sometimes of the essence with public disclosure, and that is exemplified by the instant case. Mr. Yousoufian’s May 30, 1997 request sought timely public disclosure of information related to a study relied on by supporters of the proposed football stadium, the public funding for which was set for special election on June 17, 1997. See Ex. 171; see also Brower v. State, 137 Wn.2d 44, 51-52, 969 P.2d 42 (1998) (considering constitutionality of election). Washingtonians were asked by the legislature to adopt by referendum a bill providing for the financing and construction of Qwest Field and its adjacent exhibition center. Brower, 137 Wn.2d at 49. Public financing for this project was estimated at $300 million. Laws of 1997, ch. 220, § 210.

Specifically, Mr. Yousoufian sought “the widely quoted ‘Conway Stud/ that many politicians have referred to in connection with the economic impacts of sports stadiums and any other such studies” as well as “all related records including, but not limited to, how and why and by whom the study was ordered, its cost, and any previous or subsequent studies on sports stadiums.” Ex. 171 (emphasis added). However King County timely provided only the Conway Study and advised Mr. Yousoufian the other records “would not be available for three weeks because they had to be retrieved from Archives” (conveniently after the election), even though the official who responded “did not specifically inquire into the location of other studies before responding.” Clerk’s Papers (CP) at 1011. Moreover it transpired that “much of Mr. Yousoufian’s PDA request involved documentation not yet stored in Archives.” Id. Mr. Yousoufian was wholly denied his right to be timely informed of the merits of the stadium proposal before the vote took place. Just as *448sending the place-kicker into the game to boot the winning field goal after time expires is too late, so is providing an inquisitive voter information related to an election after the votes are cast. With elections such as these, the adage “better late than never” is simply inadequate.

King County’s egregious misconduct continued even after the vote which formed the basis for why the records were sought took place. As the trial court found:

Mr. Fenton [Mr. Yousoufian’s attorney] sent another letter on December 31st to explain that Mr. Yousoufian’s request had not been adequately answered. Orna LaMothe responded on January 14th, 1998, that the Executive was only responsible for providing documents within its office and that “hundreds of hours” had already been spent trying to retrieve responsive documents. This statement was factually and legally incorrect. When the county did make an informed effort to find the documents, they were located and produced within a couple of days by Pat Steele.

CP at 1019. Such devious misconduct cannot be equated to an agency acting with the utmost good faith. Moreover the stakes of this project were enormous. Even if King County acted with such good faith, its failure to comply with Mr. Yousoufian’s PDA request affected the “public concern” far more than any other failure resulting in a mere inconsequential inconvenience to the litigant alone. See supra p. 446. Accordingly, a penalty at or near $100 per day is not only necessary but also required to punish King County’s misconduct. Courts are routinely used to punish private citizens where the context so demands. See RCW 19.86.090(treble damages authorized for violation of Consumer Protection Act). There is simply no justification for an allegedly impartial court to alter that approach when it comes to the government.

CONCLUSION

I join the majority insofar as it holds a trial court may not statutorily shorten the penalty period based on when a PDA litigant’s claim ripens. However the majority abdicates its duty to enforce the PDA’s strongly worded mandate when *449it chips away at the only tool to enforce “full access to information concerning the conduct of government on every level,” which is “a fundamental and necessary precondition to the sound governance of a free society,” RCW 42-.17.010(11), by rewriting the statute to dispense with the per record penalty.

I therefore dissent in part.

For instance the majority correctly holds “the PDA unambiguously requires a penalty ‘for each da/ ” the agency is noncompliant with the PDA request. Majority at 437.

See King County, Economic and Revenue Forecast 7, available at http:// www.metrokc.gov/budget/2004/Adopted/2Econ.pdf (last visited Sept. 28, 2004).

This is not to suggest the PDA contemplates a penalty per page. Rather, as Yousoufian sufficiently asserts in his briefing, a trial court could consider whether a record is bound or has attachments, in which case the document could be treated as a single record that is withheld. See Pet’r’s Answer to Brs. of Amici Curiae at 14. However the agency’s failure to include pages of a single record would undeniably lead to a “refus [al] to allow inspection or copying of a specific public record or class of records.” RCW 42.17.340(1).

This number is precisely the mid-point between $5 and $100.