Brian Green v. Lewis County

• Court: Court of Appeals of Washington
• Decided: July 16, 2018
• Docket: 77746-7
• Status: Unpublished

Opinion

fit.ED DIV 1 COURT OF APPEALS VIASNInTON STATE OF

MB JUL 16 AM 9: 12 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON BRIAN GREEN, No. 77746-7-1 Appellant, DIVISION ONE V. UNPUBLISHED OPINION LEWIS COUNTY,

Respondent. FILED: July 16, 2018

TRICKEY,J. — Brian Green filed a lawsuit seeking a document that the Lewis County Sheriff's Office failed to produce in response to his prior Public Records

Act (PRA)" request. The Sheriffs Office immediately admitted it had mistakenly

omitted the document and violated the PRA. The Sheriff's Office sent Green the

responsive document.

The case went to trial to establish the appropriate PRA violation penalty.

The trial court awarded Green 25 percent of his reasonable attorney fees and costs

and imposed a significantly smaller PRA violation penalty on the Sheriffs Office

than Green had requested. Green appeals these awards. Finding no error, we

affirm.

FACTS

On November 19, 2014, Green sent a PRA request to the Sheriffs Office

seeking "[a]ny and all official correspondence from the Lewis County Sheriff, his

1 Ch. 42.56 RCW. No. 77746-7-1/ 2

deputies, or any member -and/or agent of his office endorsing, advocating,

commending, recommending, or otherwise recognizing Stephanie S[c]hendel."2

Later that day, Chief Civil Deputy Stacy Brown responded to Green and asked for

clarification of his request. After receiving more information from Green, Chief

Brown forwarded a letter of recommendation that she had written for Schendel and

told Green that she hoped to have any other responsive documents to him by

November 28, 2014.

Chief Brown sent an e-mail to other Sheriffs Office employees seeking

additional responsive records, but did not receive any in reply. On November 26,

2014,she notified Green that there were no additional records and closed his PRA

request.

On November 17, 2015, Green, representing himself, filed a lawsuit,

alleging that the Sheriffs Office violated the PRA by deliberately failing to provide

a five-page employment reference questionnaire from the Bellevue Police

Department that had been completed by Chief Brown for Schendel.

On November 25, the Sheriffs Office filed an answer to the complaint

admitting violation of the PRA. The Sheriff's Office's answer included a declaration

from Chief Brown that described her good faith effort to respond to Green's request

and her mistake in omitting a single document. The Sheriffs Office appended the

omitted responsive document to Chief Brown's declaration. The answer,

declaration, and responsive document were sent to Green.3

2 Ex. 1 at 3. 3 Green received the answer and additional documents because he was representing himself. Green obtained an attorney for trial. 2 No. 77746-7-1 / 3

Green subsequently moved for partial summary judgment. He alleged that

the Sheriffs Office had withheld the responsive document as "politically motivated

back room quid pro quo between the Lewis County Sheriff's Office and (former)

Chronicle reporter Stephanie S[c]hendel."4 According to Green, Schendel had

written a series of"prejudicial media hit pieces" in the Chronicle that reflected badly

on Green during his campaign for Lewis County Sheriff.5 He claimed that the

Sheriffs Office provided Schendel with a formal recommendation for employment

as a law enforcement officer in Bellevue in exchange for the newspaper articles.

Green argued that the Sheriff's Office withheld the "smoking gun" evidence,

thereby intentionally violating the PRA.6 The trial court declined to rule on Green's

motion for partial summary judgment because the nature of the allegations

required a hearing on the facts.

On December 16, 2016, the trial court held a hearing to determine the

amount of the penalty to be imposed on the Sheriff's Office for violating the PRA.

Green requested a per diem penalty of $80.7 The trial court found no evidence of

the alleged bad faith or conspiracy on the part of the Sheriff's Office. The trial court

also found Chief Brown's testimony that her omission of the responsive document

was an honest mistake based on her interpretation of the wording of Green's

record request to be credible. Additionally, Green stipulated that there was no

evidence of either a quid pro quo arrangement or intentional withholding of the

4 Ex. 9 at 1. 6 Ex. 9 at 2. 6 Ex. 9 at 1. 7 The PRA provides a penalty of up to $100 per day for each day that the requesting party is denied the right to inspect or copy the requested public record. RCW 42.56.550(4). 3 No. 77746-7-1 /4

The trial court awarded Green 25 percent of his reasonable attorney fees

and costs because he prevailed on his PRA violation claim, but not on his bad faith

and conspiracy claims. The trial court calculated a $5 per diem penalty for the 369

days between the closure of his PRA request on November 26, 2014 and Green's

receipt of the record with the litigation materials on November 30, 2015.

Green appeals.

ANALYSIS

Attorney Fees and Costs under the PRA

Green contends that the trial court erroneously awarded only 25 percent of

his reasonable attorney fees and costs after he prevailed on his PRA claim.

Although Green prevailed on his claim that the Sheriff's Office violated the PRA,

he did not succeed on the claims of bad faith and conspiracy that incurred the

majority of his attorney fees and costs. As a result, we conclude that the trial court

did not err in determining Green's award for attorney fees and costs.

A person who prevails "in any action in the courts seeking the right to inspect

or copy any public record" shall be awarded reasonable attorney fees and costs

incurred in connection with the legal action. RCW 42.56.550(4). A party may

recover attorney fees only for work related to successful issues. O'Neill v. City of

Shoreline, 183 Wn. App. 15, 25, 332 P.3d 1099 (2014). A reduced award is

appropriate when the plaintiff prevails on only a percentage of the issues. Sanders

v. State of Wash., 169 Wn.2d 827, 871, 240 P.3d 120 (2010).

4 No. 77746-7-1/ 5

A trial court's decision on an attorney fee award under the PRA is reviewed

for abuse of discretion. Sanders, 169 Wn.2d at 867.

Here, Green prevailed on his claim that the Sheriff's Office violated the PRA

by failing to produce a responsive document. The Sheriff's Office admitted to this

violation at the outset of Green's lawsuit. Under the PRA, Green is entitled to his

reasonable attorney fees and costs for prevailing on this claim.

But the majority of Green's litigation costs stemmed from the pursuit of his

bad faith and conspiracy allegations. Green did not prevail on these issues,

eventually stipulating to a lack of evidence of the alleged quid pro quo. Thus,

because Green did not succeed on the claims that comprised a significant portion

of the litigation in this case, the trial court did not abuse its discretion by awarding

Green only 25 percent of his requested attorney fees and costs.

PRA Violation Penalty

Green argues that the trial court erred by incorrectly establishing the per

diem penalty imposed on the Sheriff's Office for violating the PRA. Specifically,

Green claims that the trial court miscounted the number of days and erroneously

considered timeliness as both an aggravating and a mitigating factor. We find no

error in the trial court's determination of the penalty.

The PRA provides for a penalty against the subject of a PRA request for

wrongfully withholding responsive documents. RCW 42.56.550(4). The trial court

has discretion to award the requestor "an amount not to exceed one hundred

dollars for each day that he or she was denied the right to inspect or copy said

public record." RCW 42.56.550(4). When setting the PRA penalty award, the trial

5 No. 77746-7-1/6

court must determine the number of days the requesting party was denied access

and then determine the appropriate per day penalty. Yousoufian v. Office of Ron

Sims, 168 Wn.2d 444,459-60, 229 P.3d 735(2010).

The trial court's determination of the amount of a PRA penalty award is

reviewed for abuse of discretion. Yousoufian, 168 Wn.2d at 458.

Days Without Access

Green contends that the trial court incorrectly calculated the number of days

that he was denied access to the requested record. He argues that the Sheriffs

Office did not comply with the statutory requirements of the PRA when it provided

the responsive document as part of the litigation. Green also contends that the

Sheriffs Office improperly treated him differently from other requestors by

supplying the record in this manner. Neither argument is persuasive.

The PRA provides for a penalty for each day that the requestor"was denied

the right to inspect or copy" the wrongfully withheld document. RCW 42.56.550(4).

When Green received the document as part of the litigation, he was no longer

denied the right to inspect or copy the record. Therefore, the PRA penalty period

ended on the day the Sheriffs Office provided the record, regardless of the method

by which it was provided. The trial court did not abuse its discretion by concluding

that the penalty period ended when Green received the record during litigation.

Further, Green's argument that responsive records cannot be properly

produced as part of a lawsuit is contradicted by the Supreme Court's treatment of

documents produced subsequent to litigation in Sanders. 169 Wn.2d at 849-50.

The court determined that the relevant penalty ran from the date of the PRA

6 No. 77746-7-117

request to the date in which the last of the subsequent-production documents were

produced as part of the litigation. Sanders, 169 Wn.2d at 871 n.32. In this case,

the trial court applied the same approach to calculating the penalty period.

Finally, the PRA does not support Green's claim of disparate treatment.

The PRA establishes that "[a]gencies shall not distinguish among persons

requesting records, and such persons shall not be required to provide information

as to the purpose for the request except to establish whether inspection and

copying would violate" statutes which prevent disclosure of specific information to

certain persons. RCW 42.56.080. "To violate RCW 42.56.080 . . . the agency

must use the requester's identity to deny access to records." City of Lakewood v.

Koenig, 160 Wn. App. 883, 891, 250 P.3d 113 (2011), affd, 182 Wn.2d 87, 343

P.3d 335 (2014). This prohibition is to prevent agencies from denying PRA

requests based on the requestor's identity or purpose. See SEIU Healthcare

775NW v. Dep't of Soc. & Health Servs., 193 Wn. App. 377, 405, 377 P.3d 214

(2016); Koenig, 160 Wn. App. at 891.

Here, the Sheriffs Office did not inquire as to Green's purpose or identity,

or deny his PRA request based on his purpose or identity. The Sheriffs Office

merely provided the record as part of the litigation process instead of reopening

the PRA request. This is not disparate treatment under RCW 42.56.080.

Green's receipt of the relevant record as part of the litigation was not

improper. The trial court did not err in setting the date that Green received the

document with the answer and supporting declaration from the Sheriff's Office as

the end of the penalty period.

7 No. 77746-7-1 / 8

Timeliness as an Aggravating Factor and a Mitigating Factor

Green argues that the trial court erred by considering the Sheriffs Office's

timeliness in responding to his PRA request as both an aggravating factor and a

mitigating factor when calculating the penalty for the PRA violation. Green

proposes that this court adopt a rule that trial courts cannot consider a single factor

as both an aggravator and a mitigator. We find no internal inconsistency in the

trial court's analysis and decline to adopt Green's proposed rule.

In determining the appropriate penalty for a PRA violation, the trial court

must consider aggravating and mitigating factors. Yousoufian, 168 Wn.2d at 466-

67. Mitigating factors that may decrease the penalty are

(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, 168 Wn.2d at 467 (footnotes omitted). Aggravating factors that may

increase the 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 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, where the importance was foreseeable to the agency;(8) any actual personal economic loss to the requestor resulting from the agency's misconduct, 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.

8 No. 77746-7-119

Yousoufian, 168 Wn.2d at 467-68 (footnotes omitted). Factors may "overlap."

Yousoufian, 168 Wn.2d at 468.

In this case, the trial court considered all of the Yousoufian factors on the

record, but on appeal Green objects only to the trial court's consideration of

"timeliness" in calculating the PRA penalty. Yousoufian establishes prompt

response as a mitigating factor and delayed response as an aggravator. 168

Wn.2d at 467-68. The trial court considered the Sheriff's Office's prompt response

to Green's PRA request to be a mitigating factor. But the trial court also noted that

the Sheriff's Office failed to provide access to the undisclosed document for over

a year, and considered this delay to be an aggravating factor.

The trial court's assessment of timeliness relates to two separate issues—

promptness in response and tardiness in delivery of the record. As distinct aspects

of the Sheriff's Office's compliance with the PRA,the trial court properly considered

them as separate and opposing factors in this case. There is no inherent

contradiction in the trial court's use of the Sheriff's Office's initial promptness as a

mitigator but overall delay as an aggravator. Thus, we conclude that the trial court

did not abuse its discretion by considering both aspects of the Sheriff's Office's

performance when calculating the penalty.

Attorney Fees and Costs on Appeal

Green requests his reasonable attorney fees on appeal as the prevailing

party on a PRA violation claim. See RCW 42.56.550(4); Resident Action Council

v. Seattle Hous. Auth., 177 Wn.2d 417, 447, 327 P.3d 600 (2013). A party is

entitled to attorney fees and costs if he or she prevails on the principal issue of the

9 No. 77746-7-1 / 10

case. O'Connor v. Wash. State Dep't of Soc. & Health Servs., 143 Wn.2d 895,

911,25 P.3d 426 (2001).

While Green prevailed on his claim that the Sheriff's Office violated the PRA

below, he has not prevailed on the issues he has raised on appeal. Therefore, he

is not the prevailing party and is not entitled to his attorney fees and costs on

appeal.

Affirmed.

y / \J WE CONCUR:

N2s.