Chapter §18.4 Attorney Fees

• Jurisdiction: Washington

§18.4 ATTORNEY FEES

This section discusses the attorney fee provisions of RCW 42.56.550(4).

(1) Statutory language

With regard to attorney fees, RCW 42.56.550(4) now provides:

Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action.

(2) Mandatory if requesting party prevails

The language of the statute makes the grant of attorney fees mandatory because it uses the term "shall." Washington courts have confirmed this interpretation. In Amren v. City of Kalama, 131 Wn.2d 25, 929 P.2d 389 (1997), the Washington Supreme Court noted that the statute "is very clear that the court 'shall' award attorney's fees to a person who prevails against an agency in an action seeking the disclosure of public records." Id. at 35; see also Am. Civil Liberties Union of Wash. v. Blaine Sch. Dist. No. 503 (ACLU I), 86 Wn.App. 688, 699, 937 P.2d 1176 (1997). In the earlier case of Progressive Animal Welfare Society v. University of Washington (PAWS I), 114 Wn.2d 677, 686, 790 P.2d 604 (1990), the Washington Supreme Court held that attorney fees under the Washington Act are mandatory even though case law under the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, calls for the courts to consider various factors in determining whether attorney fees would be awarded. Those factors are not to be considered in determining whether to award attorney fees under Washington law. PAWS I, 114 Wn.2d at 688.

Nonetheless, the award of attorney fees is not authorized when the prevailing party appears pro se and is not an attorney. West v. Thurston County (West II), 168 Wn.App. 162, 194-95, 275 P.3d 1200 (2012). The statute provides for fees to an attorney, "not fees in lieu of attorney fees to non-attorneys who represent themselves in PRA actions." West II, 168 Wn.App. at 194; see also Mitchell v. State Dep't of Corr, 164 Wn.App. 597, 608, 277 P.3d 670 (2011) ("pro se litigants are generally not entitled to attorney fees for their work representing themselves.").

(a) Good faith is not a defense

To agencies, the interpretation that attorney fees are mandatory if the requesting party prevails may seem harsh when the agency had a good faith, albeit wrong, basis for denying the request. Washington courts, however, have rejected the theory that a good faith defense will override the mandatory aspect of this subsection. Amren, 131 Wn.2d at 35; ACLU I, 86 Wn.App. at 699.

In Tacoma Public Library v. Woessner (Woessner I), 90 Wn.App. 205, 951 P.2d 357, amended, 972 P.2d 932 (1998), the Court of Appeals initially adopted a different interpretation. In Woessner I, the Court of Appeals initially denied the requesting party attorney fees because it only prevailed in part and because the agency acted in good faith. But the Supreme Court (in a rare one-page remand order) directed the Court of Appeals to consider PAWS I, 114 Wn.2d 677, Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993), and Limstrom v. Ladenburg (Limstrom II), 136 Wn.2d 595, 963 P.2d 869 (1998), and perhaps come up with a different conclusion. Tacoma Pub. Library v. Woessner (Woessner II), 136 Wn.2d 1030, 972 P.2d 101 (1998). On remand, the Court of Appeals deleted the portion of the opinion denying the requestor attorney fees and inserted the following language:

Under RCW 42.17.340(4) [RCW 42.56.550(4)], any person who prevails in an action to compel agency disclosure must be awarded attorney fees, regardless of the good faith on the part of the agency withholding the information. Such good faith is relevant only for purposes of determining whether additional penalties should be assessed. A party who wins disclosure of some, but not all, information sought, is nonetheless deemed the "prevailing party" for purposes of awarding attorney fees and costs under the statute. Such an award must be related to that portion of attorney fees and costs involved in successfully compelling disclosure of information, not for denied disclosure of the remaining information.

Woessner I, 90 Wn.App. at 224-25 (citations omitted).

(b) Defining a prevailing party

Because an award of attorney fees for a prevailing requesting party is mandatory, the courts have had to determine when a party "prevails" for purposes of this statute. There was some uncertainty in the past about what constitutes a "prevailing party," but a 2005 case clarified the law. Before 2005, courts in various cases had held that a requestor's PRA enforcement action must cause the agency to hand over the records. See, e.g., Coal, on Gov't Spying (COGS) v. King Cnty Dep't of Pub. Safety, 59 Wn.App. 856, 801 P.2d 1009 (1990), abrogated by Spokane Research & Defense Fund v. City of Spokane (Spokane Research IV), 155 Wn.2d 89, 117 P.3d 1117 (2005); Yacobellis v. City of Bellingham (Yacobellis II), 64 Wn.App. 295, 825 P.2d 324 (1992).

But in Spokane Research IV, the Supreme Court held that "nowhere in the [PRA] is prevailing party status conditioned on [the suit] causing disclosure, ...." 155 Wn.2d at 103. In Spokane Research IV, a requestor obtained records because another party's case caused the agency to provide them. The Supreme Court held that the requestor was a prevailing party because the agency wrongfully withheld the records and the requestor was forced to file a suit. Id. As the court put it, "prevailing party" "relates to the legal question of whether the records should have been disclosed on request. Subsequent events do not affect the wrongfulness of the agency's initial action to withhold the records if the records were wrongfully withheld at that time." Id. To allow an agency to do otherwise—to deny access to a record, wait to see if a requestor files a PRA suit, and then "voluntarily" provide them and be rewarded for doing so by escaping liability for attorney fees and penalties—"flouts the purpose of the [PRA]." Id.; see also Lindeman v. Kelso Sch. Dist. No. 458, 162 Wn.2d 196, 204, 172 P.3d 329 (2007) (applying Spokane Research IV).

This holding from Spokane Research IV was later cited in West u. Thurston County (West I), 144 Wn.App. 573, 183 P.3d 346 (2008), in which the court held that an agency cannot preclude a requestor from attaining prevailing party status by merely voluntarily producing the requesting documents after a lawsuit is filed. In West I, the court held that "[government agencies may not resist disclosure of public records until a suit is filed and then, by disclosing them voluntarily, avoid paying fees and penalties." 144 Wn.App. at 581.

Comment: The mere production of records after a lawsuit is filed does not necessarily mean an attorney fee award is appropriate. For example, in Sanders v. State, 169 Wn.2d 827, 867, 240 P.3d 120 (2010), the agency elected to produce all exempt records after the lawsuit was filed, but expressly told the requestor it reserved the right to prove the records had been properly withheld. The court rejected a claim that the production of the records automatically required an award of attorney fees: "Nor do we believe that production of documents after the requester files suit ipso facto admits that the initial withholding of the documents was wrongful." Sanders, 169 Wn.2d at 849.

The Supreme Court further clarified and reaffirmed Spokane Research IV in Neighborhood Alliance of Spokane County v. County of Spokane, 172 Wn.2d 702, 726, 261 P.3d 119 (2011), stating that "no causation requirement exists to be a prevailing party in a PRA action." The court found that the requestor's possession of the requested records does not prevent remedies under the PRA if the agency does not comply with its duties to provide all responsive records. Id. at 727. In the third appellate decision in Zink v. City of Mesa (Zink II), 162 Wn.App. 688, 728,256 P.3d 384 (2011), the appeals court also relied on Spokane Research IV to find the requestor to be a prevailing party when records were released before filing, because the records should have been disclosed upon request and liability exists regardless of whether the lawsuit caused the disclosure to occur. Status as a prevailing party was not affected by the fact that some records requested had been given by the requestor to the city, because they became public records upon receipt and being date-stamped. Id. at 729.

Earlier cases reaching a different result should be viewed with caution in light of Neighborhood Alliance. For example, in Daines v. Spokane County, 111 Wn.App. 342, 44 P.3d 909 (2002), the court denied attorney fees because the plaintiff already had the records before the action was filed. In Neighborhood Alliance, the Washington Supreme Court expressly overruled Daines to the extent it permitted a defense to a "prevailing party" determination when that party already had the record sought. Neighborhood Alliance, 172 Wn.2d at 726-27.

Discussing its decision in Daines, the appeals court in Neighborhood Alliance of Spokane County v. County of Spokane, 153 Wn.App. 241, 262, 224 P.3d 775 (2009), aff'd in part, rev'd in part, 172 Wn.2d 702, 261 P.3d 119 (2011), stated that it had found the plaintiff not to be a "prevailing party" because he "(1) had the records in his own files before he filed the action, and (2) knew of this fact," so the action was not needed to obtain the records. In that case, the court found there is no cause of action under the PRA when the requestor had the records before the lawsuit was filed nor penalty to be imposed for the agency's failure to disclose the same records again. On appeal, the Supreme Court overruled and rejected this part of the lower court's decision to the extent it relied on Daines to excuse liability when the requestor already had the records. Neighborhood...