(concurrence/dissent) — An award of attorney fees is mandatory under RCW 42.17.340(4). I dissent from the majority’s holding denying costs, including attorney fees, to Mr. Johnson.
RCW 42.17.340(4) states that “[a]ny person who prevails against an agency in any action [seeking public disclosure] shall be awarded all costs, including reasonable attorney fees. . . .” (Emphasis added.) The'court recently confirmed *760the mandatory nature of a costs and fees award under this provision. Amren v. City of Kalama, 131 Wn.2d 25, 35, 929 P.2d 389 (1997); see also Progressive Animal Welfare Soc’y v. University of Wash., 114 Wn.2d 677, 686, 790 P.2d 604 (1990); accord Doe I v. Washington State Patrol, 80 Wn. App. 296, 302, 908 P.2d 914 (1996).
The majority cites Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 329, 890 P.2d 544 (1995) for the proposition that RCW 42.17.340(4) does not apply where an individual rather than an agency opposes disclosure of the records, and where the action was brought to prevent rather than compel disclosure. The majority says that Mr. Johnson prevailed against the Tribes, not the agency.
I cannot agree that Mr. Johnson did not prevail against the agency. Moreover, the majority gives an incomplete, and erroneous, explanation of Yakima Newspapers.
In Yakima Newspapers, a newspaper sought disclosure of a settlement agreement terminating a dispute between Yakima and its former fire chief. The former fire chief opposed disclosure. The trial court ordered disclosure, following which the newspaper and the city agreed to entry of a stipulated order of dismissal. The former fire chief appealed. The city did not appeal and was not a party to the appeal. On appeal, the newspaper sought attorney fees for the appeal from the former fire chief. Because an individual opposed the disclosure on appeal, and not an agency, the Court of Appeals held that the statute did not allow for an attorney fee award.8 Yakima Newspapers, 77 Wn. App. at 329-30. This reasoning is correct, because the newspaper did not “prevail [] against an agency” on the appeal, as RCW 42.17.340(4) requires for an award of costs and fees, because no agency even participated in the appeal.
However, in this case Mr. Johnson seeks attorney fees for the entire litigation, not just on appeal. Resp’t Johnson’s Br. at 46-47. Unlike Yakima Newspapers, here the party *761seeking disclosure prevailed in superior court against the agency, which did not immediately release the records sought.9 Further, any delay in disclosure based upon terms of the compact does not justify denying the costs and fees mandated by the statute. See Amren, 131 Wn.2d at 35 (rejecting the argument that a reasonable basis in law for withholding disputed records is a valid basis for a denial of attorney fees under RCW 42.17.340(4)).
If the Legislature elects to change the statute, a different question may be presented. However, under the present statute, an agency’s reliance upon a source outside the statute and not recognized by it as a basis for an exception to the mandatory costs and fees requirement has the potential to significantly undermine the purposes of the public disclosure laws.
Because costs, including attorney fees, are mandatory under RCW 42.17.340(4), I dissent from that portion of the majority opinion denying costs and fees to Mr. Johnson. Otherwise, I concur in the majority’s decision.
Alexander and Sanders, JJ., concur with Madsen, J.
Reconsideration denied September 2, 1998.
The court also rejected the newspaper’s reliance by analogy on wrongful injunction cases. Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 329, 890 P.2d 544 (1995).
The agency is a party to the appeal, but takes no position on the various exemptions to required disclosure claimed by the appellant tribes. Resp’t State’s Br. at 8.