Chapter §18.5 Penalties

• Jurisdiction: Washington

§18.5 PENALTIES

This section discusses penalties under RCW 42.56.550(4).

(1) Statutory language

The courts have determined that the statutory award is in the nature of a penalty rather than damages. In Yacobellis v. City of Bellingham (Yacobellis II), 64 Wn.App. 295, 825 P.2d 324 (1992), the court expressly concluded that this award was in the nature of a penalty and not compensation for the requesting party's damages. The difference affects, among other things, the analysis of how much should be awarded. If the award were to compensate the requesting party for its damages, then presumably the requesting party would need to show that some harm was incurred. This inquiry would not be necessary if the award were in the nature of a penalty. Moreover, as the court in Yacobellis II noted, a penalty better serves the purpose of the Act because it "is specifically designed to insure performance of statutory duties and can be imposed whenever a violation of duty has occurred." 64 Wn.App. at 301.

In reaching its conclusion that the statutory award was in the nature of a penalty, the Yacobellis II court relied upon the policies of the Act and prior cases discussing the role of this award. Id. at 300. For example, it noted that in Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978), the Washington Supreme Court characterized the award as a "fine" and emphasized its deterrent effect, saying that "[s]trict enforcement of these [punitive] provisions ... should discourage improper denial of access to public records and adherence to the goals and procedures dictated by the statute." Id.; see also Yousoufian v. Office of Ron Sims (Yousoufian V), 168 Wn.2d, 444, 460, 229 P.3d 735 (2010) (citation omitted).

(2) When is a penalty imposed?

Criteria for imposition of a penalty are discussed below.

(a) Mandatory/discretionary

The original statute had language making the award discretionary. The language was subsequently changed creating a minimum and a maximum amount to be awarded. This change was interpreted as making the statutory award mandatory with the amount within the minimum and the maximum being discretionary. See King County v. Sheehan, 114 Wn.App. 325, 57 P.3d 307 (2002); see also Limstrom v. Ladenburg (Limstrom II), 136 Wn.2d 595, 617, 963 P.2d 869 (1998); Amren v. City of Kalama, 131 Wn.2d 25, 37, 929 P.2d 389 (1997); Am. Civil Liberties Union of Wash. v. Blaine Sch. Dist. No. 503 (ACLUII), 95 Wn.App. 106, 111, 975 P.2d 536 (1999). That is, a court was required to assess a penalty of between $5 and $100 per day. In Yousoufian v. Office of Ron Sims (Yousoufian II), 152 Wn.2d 421, 98 P.3d 463 (2004), the Washington Supreme Court noted that if a trial court refuses to set a penalty, then "it is setting the penalty at less than $5, which is contrary to the unambiguous language used in RCW 42.17.340(4) [now RCW 42.56.550(4)]." 152 Wn.2d at 433; see also Yousoufian V, 168 Wn.2d at 466 (2010) (reaffirming that the trial court must consider the "entire range" of $5 to $100 per day in assessing the mandatory penalties due a prevailing requestor, but also holding that there is no set starting point to consider when calculating the daily amount, leaving that determination to the discretion of the trial court).

Subsequent to Yousoufian V, in 2011, the Act was changed to allow courts discretion in whether to award penalties. Laws of 2011, ch. 271, §1. For this reason, although the holdings of the cases cited above are still useful for explaining the purpose of penalties, the holding describing the penalties as mandatory are superseded by this statutory change.

(b) Prevailing party

As with the award of attorney fees, a party is eligible to request a statutory award only if the requesting party prevails in the litigation. RCW 42.56.550(4). The courts use substantially the same standard for determining whether a party is a prevailing party for the statutory award as they do with respect to attorney fees.

However, in 2011 the Washington Supreme Court articulated a key difference between requests for attorney fees and requests for statutory penalties. In Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 809, 246 P.3d 768 (2011) (quoting Sanders v. State, 169 Wn.2d 827, 860, 240 P.3d 120 (2010)), the court held that while costs and reasonable attorney fees may be awarded for vindicating '"the right to inspect or copy' or 'the right to receive a response[,]'... penalties are authorized only for denials of the 'right to inspect or copy'" (Emphasis added). Therefore, if a requesting party receives an inadequate or "equivocal" response from an agency, the requestor is entitled to reasonable attorney fees incurred in vindicating "the right to receive a response," but they are only entitled to a statutory award of penalty fees if they are able to prove that some documents were wrongfully withheld. Id.; see also City of Lakewood v. Koenig, 176 Wn.App. 397, 309 P.3d 610 (2013), in which the court noted that attorney fees are specified in separate sentences in RCW 42.56.550(4), with only penalties being limited to denial of records. See §18.4(2) above for a discussion of when a party prevails within the meaning of RCW 42.56.550(4).

(c) Factors used to determine penalty amount

The Washington Supreme Court has identified a series of mitigating and aggravating factors that a trial court has the discretion to apply in assessing the amount of a penalty under the PRA. Yousoufian V, 168 Wn.2d 444; see also Hoffman v. Kittitas County, 194 Wn.2d 217, 227-28, 449 P.3d 277 (2019) (trial court acts in its discretion when it determines the applicability of each individual penalty factor). A trial court is not required to start in the middle of the penalty range, but has considerable discretion to decide whatever starting point it deems appropriate, within the applicable range. The Supreme Court made clear that the factors it articulated to guide trial courts are discretionary—i.e., not mandatory and not exclusive. The court observed that no one factor should control and that each may or may not apply in a particular case. They are offered as guidance, may overlap, and are not exclusive. Id. at 468. Some appear to be considered both mitigating and aggravating, depending on the circumstances. Several cases on appeal during the period before this iteration of Yousoufian was issued were remanded to superior courts to create a full record and determine facts needed to consider these factors. See, e.g., Zink v. City of Mesa (Zink II), 162 Wn.App. 688, 705, 256 P.3d 384 (2011).

Mitigating factors that a trial court may consider in reducing a penalty against an agency include the following:

(1)	a lack of clarity in the PRA 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 all PRA procedural requirements and exceptions;
(4)	proper training and supervision of the agency's personnel;
(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.

Yousoufian V, 168 Wn.2d at 467.

Aggravating factors that a trial court may consider in increasing a penalty against an agency include the following:

(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 procedural requirements and exceptions;
(3)	lack of proper training and supervision of the agency's personnel;
(4)	unreasonableness of any explanation for noncompliance by the agency;
(5)	negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency;
(6)	agency dishonesty;
(7)	the public importance of the issue to which the request is related, when the importance was foreseeable to the agency;
(8)	any actual personal economic loss to the requestor resulting from the agency's misconduct, when 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.

Id. at 467-68.

Other factors courts have either considered or suggested were appropriate for consideration include the following:

(1)	excessive delay in the resolution that is not the fault of the agency, which serves to increase the number of days, Yousoufian II, 152 Wn.2d at 438;
(2)	the total amount of the penalty in light of the agency's wrongful conduct, Bricker v. State ,Dep't of Labor & Indus., 164 Wn.App. 16, 262 P.3d 121 (2011);
(3)	actions of the requestor that contributed to the agency violation, Zink v. City of Mesa (Zink I), 140 Wn.App. 328, 339-40, 166 P.3d 738 (2007).
(4)	failure to provide a brief explanation, Sanders, 169 Wn.2d at 859-63; and
(5)	failure to conduct an adequate search, Neighborhood Alliance of Spokane Cnty. v. County of Spokane, 172 Wn.2d 702, 724, 261 P.3d 119 (2011).

(d) Damages

As indicated above, RCW 42.56.550(4) has been interpreted as imposing a penalty. Consequently, the prevailing party need not establish that it incurred damages to be awarded the...