¶66 (dissenting) — Despite the fact that the penalty in this case was by all accounts the largest ever assessed under the Public Records Act (PRA), chapter 42.56 RCW,17 the lead opinion considers the award so inappropriately low as to require reversal of the trial court. While claiming to review the trial court for abuse of discretion, the lead opinion effectively instructs the trial court to reach the lead opinion’s preferred conclusion. In the process, the lead opinion also establishes a multifactor test that endangers trial judges’ discretion in future cases. For these reasons, I respectfully dissent.
Abuse of Discretion
¶67 The PRA’s mandate as to penalty calculations is simple: It is within the trial judge’s discretion to set the amount. “[I]t shall be within the discretion of the court to award [the prevailing plaintiff] an amount not less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.” RCW 42.56.550(4) (formerly RCW 42.17.340).
¶68 As the lead opinion notes, a trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). A trial court’s decision is “ ‘manifestly unreasonable’ if ‘the court, despite applying the correct legal standard to the supported facts, adopts a view “that no reasonable person would take.” ’ ” Id. (emphasis added) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990))). A decision rests “on untenable reasons if it is based on an incorrect standard or the facts do not meet the *468requirements of the correct standard.” In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
¶69 Here, the trial judge certainly took a reasonable view. First, he carefully examined the particularities of this case. He recognized that “the issue in this case was of considerable public interest,” Clerk’s Papers (CP) at 127, but that Yousoufian did not suffer any personal economic harm as a result of the violation, CP at 126. He noted the preceding trial judge’s findings of fact, including her conclusion that King County was “ ‘negligent at every step of the way, and this negligence amounted to a lack of good faith.’ ” CP at 124. He also saw as significant the Court of Appeals finding “ ‘that the county’s violation of the [PRA] was due to poor training, failed communication, and bureaucratic ineptitude rather than a desire to hide some dark secret.’ ” Id. (quoting Yousoufian v. Office of King County Executive, 114 Wn. App. 836, 853, 60 P.3d 667 (2003) (Yousoufian I), aff’d in part, rev’d in part, 152 Wn.2d 421, 98 P.3d 463 (2005) (Yousoufian II); appeal after remand, Yousoufian v. Office of Ron Sims, 137 Wn. App. 69, 151 P.3d 243 (2007) (Yousoufian III), review granted, 162 Wn.2d 1011, 175 P.3d 1095 (2008)).
¶70 Second, the trial judge aptly analogized this case to American Civil Liberties Union of Washington v. Blaine School District No. 503, 95 Wn. App. 106, 975 P.2d 536 (1999) (ACLU), in which the court awarded $10 per day to the plaintiff. In that case, the defendant school district did not merely refuse to mail documents responsive to the ACLU’s request, as asserted by the lead opinion. See lead op. at 453-54. There, as in this case, the government agency did not act in good faith. ACLU, 95 Wn. App. at 115. There, as here, the agency mischaracterized the size of the request and the time necessary to fulfill it. Id. at 113. There, as here, the agency displayed a lack of knowledge of its obligations under the PRA. Id. at 113-14. Additionally, the agency in ACLU patently contravened the purpose of the PRA when it stated that it did not wish to help the ACLU prepare a legal case against the government. Id. at 114. The trial judge concluded, “this *469court does not regard the County’s conduct to be significantly more egregious than that of the school district in [ACLU],” and he awarded Yousoufian $15 per day, for a total of $123,780. CP at 127. We cannot say that “no reasonable person would take” such a position; thus, the award was not “manifestly unreasonable.”
¶71 Nor was the trial judge’s decision based on untenable reasons. The lead opinion’s view that the penalty here was unreasonably low is grounded in its assumption that the per day penalty must be assessed on a sliding scale that metes out progressively higher penalty amounts from $5 to $100 based on the government’s “culpability” level. Lead op. at 456, 458. On the contrary, the $5-$100 penalty range gives the trial court discretion to assess an appropriate penalty for the violation, given all the circumstances, including the number of penalty days and the level of culpability at different points in the penalty period.
¶72 By basing the daily award on a rigid culpability scale, the lead opinion ignores the fact that the county’s culpability level — what the lead opinion calls “gross negligence” — reflects the totality of its actions over a five-year period. Id. at 451. In fact, the original trial court found that the county was “ ‘negligent at every step of the way,’ ” CP at 124 (emphasis added), which apparently led the Court of Appeals to characterize the cumulative conduct as “grossly negligent,” Yousoufian I, 114 Wn. App. at 853. The county’s actions on the first day of the violation did not evince the same level of culpability as did its actions on the last day of the violation. The lead opinion offers no support for its conclusion that the $15 daily assessment was an unreasonable value for the county’s average daily misconduct over the penalty period.
¶73 Because we measure aggregate misconduct across the whole of the penalty period, our review requires us to consider the whole penalty, not the daily penalty in isolation. We cannot characterize an award as “high” or “low” based on the daily penalty alone because it is the daily assessment combined with the number of penalty days that *470reflects the total punishment the government actually receives. The $5-$100 daily penalty range reflects the trial court’s discretion to set a more substantial daily penalty for less culpable action that occurs over a short period of time, thus still impressing the importance of the PRA on the offending government agency. By requiring the trial court to assess a high daily penalty for “grossly negligent” conduct, the lead opinion deprives trial courts of their ability to consider the total award when deciding if the penalty is appropriate.
¶74 Our decision in Yousoufian II does not require trial courts to ignore the total number of penalty days when assessing a daily penalty. In that case, we held that a lack of good faith required something more than the absolute minimum award available under the PRA. Yousoufian II, 152 Wn.2d at 439. We went on to establish that the trial court’s penalty calculation is a two-step process: first, to determine the number of penalty days; second, to determine the appropriate penalty. Id. at 438. This analysis requires the trial court to determine the length of the violation before it decides on a per day penalty, allowing the court to consider the length of the violation when determining the penalty. Even conceding that the conduct here was “grossly negligent” in the five-year aggregate, the trial court’s award of $15 per day for a total of $123,780 was not manifestly unreasonable.
¶75 The purpose of the PRA penalty provision is to deter violations of the PRA. Id. at 429-30. The lead opinion asserts that the trial judge failed to account for deterrent effect when he assessed a penalty only $5 per day higher than the ACL U penalty. The lead opinion assumes that it may take a heftier penalty to deter a large county than it would to deter a small school district like the one in ACLU. However, the lead opinion fails to consider the total award in concluding that the penalty will not properly deter the county. To evaluate deterrent effect, we must look at the total award because the per day penalty amount in isolation tells us nothing about the award’s impact on the county. The lead opinion offers *471no explanation for its conclusion that the total award of $123,780 would fail to serve the deterrent purpose of the PRA.18
¶76 Though some of us might have chosen to assess a higher penalty in this case, we review the trial judge’s actions for abuse of his discretion, not for contravention of our own preferences. It is simply not our place to substitute our judgment for that of the trial judge. The trial judge’s award — $15 per day for a $123,780 total — should stand.
The New 16-Part Standard
¶77 Having dismissed the trial court’s decision without regard for trial court discretion, the lead opinion goes on to create a 16-part test for penalty calculations, which it orders the trial court to employ on remand. The test endangers trial courts’ discretion and will also prove unhelpful for litigants and courts alike.
¶78 The lead opinion’s new rule lists 16 factors for the trial court to consider in assessing the county’s culpability level, and it declares that “[the] guidance is not meant to limit [a] trial court’s discretion.” Lead op. at 456. But limit trial courts’ discretion it will. Though the list of factors is “nonexclusive,” trial judges still presumably must examine each of the 16 factors on the record. Id. at 458-59. This formulation provides appellate courts with opportunities aplenty to disregard trial judges’ discretion, focusing on judges’ strict compliance with the test, rather than their nuanced view of the entirety of each case (She failed to consider aggravating factor 7. He did not adequately address “training and supervision.”). Id. at 458. And trial judges will only cautiously venture to add new factors to the list, never knowing whether this court will sanction those new factors. With the lead opinion’s imposition of a 16-factor test, we watch “abuse of discretion” review edge its way toward “de novo” review.
*472¶79 And at peril of trial judges’ discretion, we gain very little. The new test is unhelpful for four reasons. First, the factors are cumulative. All of the mitigating factors and the first six aggravating factors are commonsense inquiries to measure the level of good faith or bad faith on the part of the county (Was the county honest? Was it helpful? Did it train its employees?). As such, these factors are subsumed completely in mitigating factor 3 (“good faith . . . compliance”) and aggravating factor 5 (“negligent, reckless, wonton, bad faith, or intentional noncompliance”). Id. Second, aggravating factors 7 and 8 (“potential for public harm” and “personal economic loss”) tell us nothing about the county’s blameworthiness unless we inquire whether the county knew of these risks. Id. Third, aggravating factor 9, deterrence, is a purpose of the penalty provision as a whole, not an indicator of the culpability of the county. In any event, deterrent effect can be effectively evaluated based only on the total award, not the per day award. Fourth, the test does little to assist in standardizing awards because it does not (and cannot) give trial courts guidance as to the relative weight of the factors. While the new test requires trial courts to march through a list of considerations, it leaves courts with little idea of what to do with the results. In my estimation, this test is not worth the risk it poses to trial judges’ discretion.
The Lead Opinon’s Application of Its 16-Part Test
¶80 Assuming for argument’s sake that the lead opinion’s new 16-part test will give useful guidance to trial judges, the lead opinion should allow the trial judge here to apply that test, pursuant to his own discretion. Instead, the lead opinion applies the test itself and concludes that “a penalty at the high end of the penalty range” is “clearly require[d].” Lead op. at 461.
¶81 This approach turns the abuse of discretion standard on its head by requiring the trial judge to approximate a penalty award that we, in our discretion, deem optimal. The trial judge may no longer evaluate the factors as he *473sees fit, explaining why certain factors have differing relative weight and perhaps adding factors. His only choice now is to mimic our analysis and mirror our conclusion. If he does not choose an award amount large enough for our liking, we simply reverse him again, this time with the aid of the predetermined 16-part test analysis set forth in the lead opinion.
¶82 Also, under the lead opinion’s characterization of the penalty range, the high end of the range is reserved for only the most egregious conduct. Here, there were no findings that the county acted in bad faith or intentionally withheld any documents; thus, King County’s conduct here does not mandate a “high end” penalty.
Conclusion
¶83 We cannot say that “no reasonable person” would have ordered an award of $15 per day in this case. Thus, under true abuse of discretion review, the trial judge here did not abuse his discretion, and his determination should stand. Further, this court should refrain from imposing a cumbersome multifactor test that will jeopardize trial judges’ discretion and at the same time assist appellate courts very little.
Madsen, J., and Seinfeld, J. Pro Tem., concur with Owens, J.Reconsideration granted in part June 12, 2009. Mandate recalled and case to be set for rehearing.
In 2005, the provisions in chapter 42.17 RCW pertaining to public records were recodified at chapter 42.56 RCW. Laws of 2005, ch. 275, § 1.
In addition, the legislature’s intent is not advanced by the lead opinion. The legislature did not intend to bankrupt government agencies with huge penalties, as evidenced by its imposition of a one-year statute of limitations for PEA claims. See Laws of 2005, ch. 483, § 5(6).