Yousoufian v. Office of King County Executive , 152 Wash. 2d 421 ( 2004 )

Chambers, J.

(concurrence/dissent) — I agree with the majority that a trial court’s assessment of penalties for violations of the public disclosure act (PDA), RCW 42-.17.340(4), should be reversed only for abuse of discretion. However, I disagree with the majority’s conclusion that the trial court abused its discretion in assessing the minimum daily penalty of $5. Majority at 439. Issues involved in a public disclosure request may become complex. The form and timing of a request or series of requests for public records may raise issues with respect to how many requests were made, how many records were requested, whether the right to inspect or copy was denied, and if so for how many days. These issues should be left to the sound discretion of the trial court.

Here, Judge Learned entered detailed findings with respect to the number of documents, days in which they were denied, and circumstances surrounding the county’s denial of Armen Yousoufian’s right to inspect and copy. The trial court could have concluded under these circumstances that the documents were denied for fewer days, but inasmuch as there is a finding of fact that the documents were denied until the date the suit was filed, I agree it was an abuse ofdiscretion not to assess a penalty for each day the documents were found to be denied. See majority at 437-38.

The PDA explicitly leaves it within the sound discretion of the trial court to set the amount of the daily penalty within the statutory range. RCW 42.17.340(4). Here Judge Learned considered the findings with respect to the number of requests, records requested, and days denied, as well as the circumstances surrounding the denials, including the county’s negligence and lack of either good or bad faith. In light of all those considerations, she concluded a $5 per day penalty was appropriate. Whether individual members of this court would have reached a different conclusion is irrelevant on review. Our task in resolving this issue is limited to whether the assessment of a $5 per day penalty, in light of the complex issues and circumstances presented in this case, was an abuse of discretion. Finding no abuse of discretion, I would affirm the trial court’s assessment of a $5 per day penalty and would reverse the Court of Appeals on this issue.

I agree with the majority’s resolution of the remaining issues.

After modification, further reconsideration denied January 25, 2005.