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Thursday, March 25, 2010

! Yousoufian Decided !

The Supreme Court issued its long-awaited final decision in the Yousoufian case on Public Records Act Penalties. A 5-4 decision. The penalty awarded was $45 per day out of a possible range of between $5 and $100 per day.

The conduct of the agency at issue, King County, was atrocious. Without recounting all the facts, suffice it to say the King County spent years lying to the requestor and not providing the records.

The Court ruled that a trial court should decide where to start the daily penalty analysis, that is the dollar figure to start at and then either increase or decrease the amount from there. Several newspapers filed an amicus brief, written primarily by Allied Law Group's Michele Earl-Hubbard, suggesting a starting point of $52.50, the median between $5 and $100. The Court rejected the $52.50 median starting point.

The Court then laid out the following factors for decreasing a penalty: (1) a lack of clarity in the request, (2) the agency's prompt response or legitimate follow-up inquiry for clarification, (3) the agency's good faith, honest, timely, and strict compliance with the PRA, (4) proper training and supervision of agency staff, (5) the reasonableness of any explanation for noncompliance by the agency, (6) the helpfulness of the agency to the requestor, and (7) the existence of agency systems to track and retrieve public records.

The factors for increasing a penalty are: (1) a delayed response by the agency, especially in circumstances making time of the essence, (2) lack of strict compliance by the agency with all the PRA's requirements, (3) lack of proper training and supervision of agency staff, (4) unreasonableness of any explanation for noncompliance by the agency, (5) negligent, reckless, wanton, bad faith, or intentional noncompliance by the agency, (6) agency dishonesty, (7) the public importance of the issue to which the request is related, to the extent the importance is foreseeable to the agency, (8) any actual economic loss to the requestor, where the loss was foreseeable to the agency, and (9) a penalty amount necessary to deter future misconduct by the agency, considering the size of the agency and the facts of the case.

The majority opinion was written by Justice Alexander and signed by Justices Charles Johnson, Chambers, Jim Johnson, and Judge Dean Morgan (a substitute justice).

The dissent was written by Justice Susan Owens and signed by Chief Justice Madsen, Justice Fairhurst, and Judge Karen Seinfeld (a substitute justice).

Justices Sanders and Stephens did not participate.