Hoffman v. Kittitas County

• Court: Washington Supreme Court
• Decided: September 26, 2019
• Docket: 96286-3
• Status: Published

Opinion

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

RANDALL HOFFMAN, No. 96286-3

Petitioner, EN BANC

V. Filed SEP 2 6 2019

KITTITAS COUNTY, a local agency and the KITTITAS COUNTY SHERIFF'S OFFICE, a local agency.

Respondents.

FAIRHURST, C.J.—^Penalty awards by the trial court in Public Records Act

(PRA)^ cases are reviewed for abuse of discretion. In Yousoufian 11,^ we set forth a

nonexclusive list of aggravating and mitigating factors, including agency bad faith,

to guide trial courts as they exercise discretion. Petitioner Randall Hoffman argues

that the trial court's finding that the agency respondents lacked bad faith is

reviewable de novo. We decline Hoffman's invitation to carve out separate standards

' Ch. 42.56 RCW. ^ Yousoufian v. Office ofRon Sims, 168 Wn.2d 444, 229 P.3d 735 (2010) {Yousoufian II). Hoffman v. Kittitas County, No. 96286-3

of review for specific Yousoufian II factors, and we hold that the trial court did not

abuse its discretion by imposing a $15,498 penalty. We affirm the Court of Appeals.

I. FACTS AND PROCEDURAL HISTORY

A. Factual background

Because neither party challenges the trial court's factual findings, we accept

them as verities on appeal. Yousoufian II, 168 Wn.2d at 450. On June 29, 2015,

Hoffman submitted a public records request to the Kittitas County Sheriffs Office

seeking all police reports, including photos and videos, referencing an individual

named Erin Schnebly. The request was processed by Carolyn Hayes, the office's

public records clerk. Hayes performed an initial search in the office's electronic

"Spillman" case management system and located 7 responsive police reports.

Clerk's Papers(CP) at 891. Hayes did not locate any photos or videos. A thorough

review ofthe reports in the Spillman system and the office's physical storage would

have also revealed 95 photographs and 2 videos related to the responsive reports.

Hayes telephoned Hoffman for clarification. She was concerned that she had

missed something because she could not find any involvement by Hoffman in the

incidents and had not found any photos or videos. Based on an interpretation ofRCW Hoffinan v. Kittitas County, No. 96286-3

42.56.050^ that the parties now agree was erroneous, Hayes told Hoffinan that

because he was not a party involved in the reports, she could not provide to him the

majority of the documents requested. Though the parties submitted conflicting

evidence on this point, the trial court found that Hoffinan, relying on this

misinformation, agreed to limit his request to the responsive records' "face sheets"

indicating the type of incident, date, and location. CP at 896. Hayes then sent

Hoffman heavily redacted copies of the face sheets and an exemption log citing the

inapplicable RCW provision. She did not provide the full police reports, nor did she

provide the photos and videos that she had failed to locate.

Hayes was at that time preparing for retirement and working only one or two

days per week. Earlier that month, she had begun training Kallee Knudson as her

public records clerk replacement. Knudson overheard part ofthe phone conversation

and was confused by Hayes' handling of the request. Knudson asked Hayes to

explain her reasoning and did not fully understand Hayes' response but ultimately

deferred to Hayes' experience.

3 RCW 42.56.050 reads:

A person's "right to privacy," "right of privacy," "privacy," or "personal privacy," as these terms are used in [the PRA], is invaded or violated only if disclosure of information about the person:(1)Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records. Hoffman v. Kittitas County, No. 96286-3

In September 2015, Knudson came across the paper copy of Hoffman's

request while cleaning out Hayes' desk. She was still troubled by how it had been

handled and expressed her concerns to her supervisors, Kim Dawson and Sergeant

Steve Panattoni. On their advice, she called Hoffman to follow up. Hoffman

informed her that"he did get his request," but Knudson did not explain her concerns

or express her beliefthat he was entitled to more documents.Id. at 893. Dawson and

Panattoni then spoke with Hayes, who also called Hoffman to confirm he had

received what he needed. Hoffman said that he had but that he was curious about

other incidents that he thought might not have been reflected in what he received.

Hayes remained on the phone while she looked for further reports and,finding none,

discussed that the incidents might not have been reported to the police.

Hayes retired in October 2015. In February 2016, Hoffman visited the office.

He told Knudson that he should have gotten more documents, that he could sue, and

that the reason he had not received all responsive records was that Hayes and

Schnebly were drinking buddies."^

Hoffman returned on February 29, 2016. He resubmitted his original request

and submitted a second request not at issue in this appeal. The next day, Knudson

^ The parties later stipulated that a thorough investigation had failed to indicate any relationship between Hayes and the Schnebly family, and the trial court concluded there was no evidence of any such relationship. Hoffman v. Kittitas County, No. 96286-3

provided all 7 responsive police reports with minor redactions (totaling 29 pages),

as well as the 2 videos and 95 photos, free of charge.

B. Procedural history

Hoffman then sued respondents Kittitas County and the Kittitas County

Sheriffs Office (hereinafter collectively County), alleging that Hayes' initial

response violated the PRA.^ The parties agreed to a bench trial based on stipulated

and conceded facts, with affidavits, declarations, and other documentary evidence

submitted to litigate contested facts. No oral testimony was given.

The trial court found that the County had violated the PRA by improperly

redacting and withholding records for 246 days—that is, from June 29, 2015 (the

date of Hoffman's original request) to March 1, 2016(when Knudson responded to

the renewed request). The court issued a separate order setting the amount of the

County's penalty after weighing the aggravating and mitigating factors set forth in

Yousoufian II, 168 Wn.2d at 463-68. The court found, among other things, that the

County had acted negligently, but not in bad faith. The court imposed a penalty of

$0.50 per day per page/photo/video,® for a total of $15,498.00. The court also

^ Hoffman did not challenge Knudson's March 1, 2016 response to his resubmittal of the original records request. ® Measured in this way,there were 126 responsive documents(29 pages of police records, 95 photos, and 2 videos). Hence,the penalty amounted to $63 overall per day. 5 Hoffman v. Kittitas County, No. 96286-3

awarded reasonable attorney fees to Hoffman as a prevailing party against an agency

in a PRA action, as required by RCW 42.56.550(4).

Hoffman appealed the penalty award (but not the attorney fees award).

Hoffman v. Kittitas County, 4 Wn. App. 2d 489, 422 P.3d 466 (2018). Hoffman's

primary argument before the Court of Appeals was that the trial court erred in

finding, pursuant to its analysis ofthe Yousoufian II factors, that the County had not

acted in bad faith. As a result, Hoffman argued, the penalty amount was too low.'^

Hoffman also asserted that the trial court's determination ofthe County's culpability

was subject to de novo review.

The Court of Appeals reviewed the trial court's overall penalty imposition

under an abuse of discretion standard,"f[ound] no reversible error in the trial court's

culpability assessment," and affirmed the penalty. Hoffman, 4 Wn. App. 2d at 498.

"Looking at the County's overall level of culpability here," the majority held that

"the trial court appropriately found that agency culpability was merely a moderately

aggravating factor, thereby justifying a moderate penalty assessment." Id. at 499.

^ Hoffman also argued below that the trial court erroneously applied the Yousoufian II mitigating factor of '"the agency's prompt response or legitimate follow-up inquiry for clarification.'" Br. of Appellant at 45(quoting Yousoufianll, 168 Wn.2dat467);see also Hoffman, 4 Wn. App.2d at 499(rejecting this argument). On appeal to the Washington State Supreme Court, Hoffman appears to have abandoned this argument. See Pet. for Review; Suppl. Br. of Pet'r. Hoffman v. Kittitas County, No. 96286-3

11. ANALYSIS

Hoffman argues that when the factual findings in a PRA action that was tried

on solely documentary evidence are accepted as verities, an appellate court should

review de novo the trial court's determination of agency bad faith (or, as in this case,

lack thereof) that underlies its penalty assessment. He urges us to review de novo

the trial court's determination that the County lacked bad faith, find that the County

acted in bad faith, and remand to the trial court for reassessment ofthe proper penalty

amount.

We affirm the Court of Appeals. We hold that our task under the PRA is to

review the overall penalty assessment under an abuse of discretion standard. Using

this standard of review, we hold that the trial court did not abuse its discretion in

setting a per diem penalty of $0.50 per page/photo/video.

A. An appellate court's task is to review the trial court's overall PRA penalty assessment for abuse of discretion

We first consider and reject Hoffman's claim that we should review de novo

the trial court's determination that the County lacked bad faith. Trial courts "shall"

award "all costs, including reasonable attorney fees" to persons who prevail against

an agency in a PRA action. RCW 42.56.550(4). In contrast and "[i]n addition, it shall

be within the discretion of the court to award such person 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." Id.(emphasis added). This additional, discretionary award 7 Hoffman v. Kittitas County, No. 96286-3

is properly characterized as a penalty. Amren v. City ofKalama, 131 Wn.2d 25, 35-

37,929 P.2d 389(1997)."[T]he plain language of the PRA confers great discretion

on trial courts to determine the appropriate penalty for a PRA violation." Wade's

Eastside Gun Shop, Inc. v. Dep't ofLabor & Indus., 185 Wn.2d 270, 278, 372 P.3d

97 (2016). "Since enacting the PRA,the legislature has afforded courts more—^not

less—discretion in setting penalties for PRA violations," first by changing the

penalty range from not more than $25 to between $5 and $100, and then by removing

the mandatory minimum penalty. Id. at 278-79 (citing Laws of 1992, ch. 139, § 8;

LAWSOF2011,ch. 273, § 1).

In recognition of this statutory grant of discretion, it is now well settled law

that "'[t]he trial court's determination of appropriate daily penalties is properly

reviewed for an abuse of discretion.'" Yousoufian II, 168 Wn.2d at 458 (quoting

Yousoufian v. Office ofKing County Exec., 152 Wn.2d 421,431,98 P.3d 463(2004)

{Yousoufian I)); see also Wade's, 185 Wn.2d at 211\ Sargent v. Seattle Police Dep't,

179 Wn.2d376,397,314P.3d 1093 {lOUf,King County v. Sheehan, 114 Wn. App.

325, 350-51, 57 P.3d 307(2002).

To guide trial courts in their exercise of discretion, we set forth "relevant

factors for trial courts to consider in their penalty determination" in Yousoufian II.

168 Wn.2d at 464. We specified seven "mitigating factors that may serve to decrease Hoffman v. Kittitas County, No. 96286-3

the penalty"^ and nine "aggravating factors that may support increasing the

penalty."^ Id. at 467-68. We did so to "provide[] guidance to trial courts, more

predictability to parties, and a framework for meaningful appellate review." Id. at

468. But we "emphasize[d] that the factors may overlap, are offered only as

guidance, may not apply equally or at all in every case, and are not an exclusive list

of appropriate considerations. Additionally, no one factor should control." Id. And

we cautioned that "[t]hese factors should not infringe upon the considerable

discretion oftrial courts to determine PRA penalties."Id. In other words, Yousoufian

^ The mitigating factors 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.

168 Wn.2d at 467(footnotes omitted).

^ The aggravating factors are

(1) a delayed response by the agency, especially in circumstances making time of the essence;(2)lack ofstrict 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 ofthe agency and the facts of the case.

168 Wn.2d at 467-68 (footnotes omitted). Hoffman v. Kittitas County, No. 96286-3

II articulated guidelines for trial courts deciding whether to impose a penalty (and if

so, how much)for a PRA violation.

Hoffman concedes that "[t]he ultimate penalty that a trial court selects under

the PRA is reviewed for abuse of discretion." Suppl. Br. of Pet'r at 11. But, he

contends, "that does not mean that all subsidiary issues—issues that influence the

selection of the penalty—are reviewed for abuse of discretion." Id. The subsidiary

issue of the County's bad faith is, he argues, a mixed question of law and fact.

Because the facts are at this stage uncontested and involved no determinations of

live witness credibility, this leaves only a legal question—specifically, the

application of the uncontested facts to the legal standard of bad faith—^that is

properly reviewed de novo.

Hoffman's argument relies on three Court of Appeals cases interpreting and

applying RCW 42.56.565(1). See Francis v. Dep't of Corr., 178 Wn. App. 42, 313

P.3d 457 (2013) (reviewing de novo the trial court's determination under RCW

42.56.565(1) that the Department of Corrections acted in bad faith); Faulkner v.

Dep't of Corr., 183 Wn. App. 93, 332 P.3d 1136 (2014); Adams v. Dep't of Corr.,

189 Wn. App. 925, 361 P.3d 749(2015). That statute, first passed in 2011, prohibits

courts from awarding PRA penalties to correctional facility inmates "unless the court

finds that the agency acted in bad faith" in its violation of the PRA. RCW

42.56.565(1). The cases cited by Hoffman "provide guidance in applying the bad

10 Hoffman v. Kittitas County, No. 96286-3

faith standard in RCW 42.56.565" because under that amendment to the PRA,"a

finding of bad faith is now a threshold that must be met before penalties can be

awarded to an inmate." Faulkner, 183 Wn. App. at 103; cf. Amren, 131 Wn.2d at 37

("a showing of bad faith... is not required" to award a PRA penalty to a noninmate).

In other words, when the plaintiff in a PRA action is an inmate, the trial court must

engage in an extra analytical step before awarding a penalty: it must find that the

agency (typically, the Department of Corrections) acted in bad faith. If—and only

if—^the trial court finds that the agency acted in bad faith, it then engages in the

normal penalty assessment analysis as guided by Yousoufian II.

We have not yet had occasion to review the Court of Appeals' inmate PRA

holdings, and this noninmate case is not the appropriate vehicle for doing so. They

interpret RCW 42.56.565, a statute that is inapplicable here. In this context, we are

instead guided by RCW 42.56.550 and our case law interpreting that statute.

RCW 42.56.550(4) states that "it shall be within the discretion of the court to

award" a penalty "not to exceed one hundred dollars" per diem to a prevailing PRA

plaintiff. (Emphasis added); see also Wade's, 185 Wn.2d at 278 ("[T]he plain

language of the PRA confers great discretion on trial courts to determine the

appropriate penalty for a PRA violation."). Hoffman asks us to engage in de novo

review oftwo ofthe Yousoufian II factors that guide trial courts as they exercise this

discretion, "the agency's good faith, honest, timely, and strict compliance with all

11 Hoffman v. Kittitas County, No. 96286-3

PRA procedural requirements and exceptions," a mitigator, and the agency's

"negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA,"

an aggravator. 168 Wn.2d at 467-68 (footnote omitted).

But as we have said before, RCW 42.56.550(4)'s grant of discretion in

awarding PRA penalties "is meaningful only if appellate courts review the trial

court's imposition of that penalty under an abuse of discretion standard of review."

Yousoufian 1,152 Wn.2d at 431."[A]n appellate court's 'function is to review claims

for abuse oftrial court discretion with respect to the imposition or lack ofimposition

ofa penalty, not to exercise such discretion ourselves.'"Id. at 430(quoting Sheehan,

114 Wn. App. at 350-51). The Yousoufian II factors are judicially crafted guidelines

that overlay a statutory grant oftrial court discretion. They"may overlap, are offered

only as guidance, may not apply equally or at all in every case, and are not an

exclusive list of appropriate considerations." Yousoufian II, 168 Wn.2d at 468

(emphasis added).

Hoffman correctly notes our holding that [wjhen determining the amount of

the penalty to be imposed the existence or absence of[an] agency's bad faith is the

principal factor which the trial court must consider.'" Id. at 460 (second alteration

in original) (internal quotation marks omitted)(quoting Amren, 131 Wn.2d at 37-

38). But that alone does not entitle him to de novo review ofthis Yousoufian II factor.

He ignores our holding that a trial court abuses its discretion by focusing exclusively

12 Hoffman v. Kittitas County, No. 96286-3

on bad faith without considering either the remaining Yousoufian II factors or any

other appropriate considerations.Sargent, 179 Wn.2d at 397-98;see also Yousoufian

II, 168 Wn.2d at 460-61 (stating that "no showing of bad faith is necessary before a

penalty is imposed" and that "a strict and singular emphasis on good faith or bad

faith is inadequate to fully consider a PRA penalty determination"). Engaging in de

novo review of the bad faith factor would risk distorting its role as one piece of a

holistic, discretionary determination ofthe appropriate penalty amount.

Trial courts' adherence to the guidelines we set forth in Yousoufian II helps

ensure that they do not abuse their discretion. Cf. Sargent, 179 Wn.2d at 397-98

(holding that the trial court abused its discretion by focusing exclusively on agency

bad faith). Articulating the basis for a penalty award in terms of the Yousoufian II

framework helps trial courts spell out their reasoning in a way that facilitates

meaningful appellate review. Yousoufian II, 168 Wn.2d at 468. But appellate review

is undertaken using an abuse of discretion standard—^not by engaging in piecemeal

de novo review of individual Yousoufian II factors.

As a reviewing court, our task is to review the trial court's overall penalty

assessment for abuse of discretion. We affirm the Court of Appeals' holding that an

appellate court reviewing a trial court's PRA penalty assessment should review the

overall penalty decision "holistically," "f^inding] the trial court's assessment

13 Hoffman v. Kittitas County, No. 96286-3

inadequate [or adequate] in light ofthe totality ofrelevant circumstances." Hoffman,

4 Wn. App. 2d at 497-98.

B. The trial court did not abuse its discretion in awarding a penalty of $0.50 per page/photo/video per day

Having discerned the appropriate standard of review, we turn to Hoffman's

claim that the penalty was too low. Hoffman asks us to hold that the County

responded in bad faith to his initial records request and to remand to the trial court

for a reassessment ofthe appropriate penalty amount in light ofthis holding.

We holistically review the overall penalty assessment for abuse of discretion.

"A trial court abuses its discretion if its decision is manifestly unreasonable or based

on untenable grounds or reasons." Yousoufian II, 168 Wn.2d at 458."A trial 'court's

decision is "manifestly unreasonable" if"the court, despite applying the correct legal

standard to the supported facts, adopts a view 'that no reasonable person would

take.""" Id. at 458-59 (quoting Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132

P.3d 115(2006)(quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638(2003)

(quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990)))). "A

decision is based 'on untenable grounds' or made 'for untenable reasons' if it rests

on facts unsupported in the record or was reached by applying the wrong legal

standard." Rohrich, 149 Wn.2d at 654(quoting State v. Rundquist, 79 Wn. App. 786,

793, 905 P.2d 922 (1995)); see also State v. Sisouvanh, 175 Wn.2d 607, 623, 290

P.3d942(2012). 14 Hoffman v. Kittitas County, No. 96286-3

The trial court entered an order expressly considering each of the Yousoufian

II aggravating and mitigating factors. The trial court found three mitigators. First, it

found that the evidence supported as a mitigating factor "the agency's prompt

response or legitimate follow-up inquiry for clarification." CP at 904 (boldface

omitted); Yousoufian II, 168 Wn.2d at 467. The court noted that both the initial

response and subsequent response were processed within five working days. It is

also worth noting that Hayes promptly telephoned Hoffman for clarification. And

when Knudson raised concerns again in September, both she and Hayes immediately

called Hoffman at Panattoni's and Dawson's urging.

Second, the court found that "proper training and supervision of the agency's

personnel" was a mitigating factor. CP at 905 (boldface omitted); Yousoufian II, 168

Wn.2d at 467. The court found that "[t]he evidence demonstrates an on-going and

consistent process of education, supervision, and access to legal counsel to seek

assistance," with "both internal and external training available to employees." Id. at

905. The record bears this out. See, e.g., CP at 397-98(Hayes received both internal

and external PRA response training), 457(Knudson describing "[r]caching out to ..

. Legal" when she was uncertain how to interpret RCW provisions), 471-72

(discussing Knudson's formal training), 496 (Hayes' training log), 572-74 (Kittitas

County Sheriffs Office public records release policy manual and training materials).

The processing of Hoffman's request was not a result of systemic problems.

15 Hoffman v. Kittitas County, No. 96286-3

Third, the court found that "the existence of agency systems to track and

retrieve public records" was a mitigator. CP at 907 (boldface omitted); Yousoufian

II, 168 Wn.2d at 467. The record is replete with references to "DaRT," an internal

system created by the County's information technology department to track and aid

responses to PRA requests. The court reasoned that "[t]his independent system,

separate and apart from the [Spillman] case management systems demonstrates a

commitment on the part of the county to successfully" provide proper, timely

responses to PRA requests. CP at 907. The court viewed this as a mitigating factor

"because the error was human error, not a function ofthe agency systems." Id.

The trial court also found three aggravating factors. First, the court found that

the evidence supported an aggravating factor of "lack of strict compliance by the

agency with all the PRA procedural requirements and exceptions." Id. (boldface

omitted); Yousoufian II, 168 Wn.2d at 467. The court noted the 246 day delay

between Hoffman's initial request and Knudson's ultimate provision of all

responsive records.

Second, the court found that the "unreasonableness of any explanation for

noncompliance by the agency" was an aggravator, noting Hayes' erroneous reliance

16 Hoffman v. Kittitas County, No. 96286-3

on the apparently inapplicable PRA provision regarding privacy. Id. at 908

(boldface omitted); Yousoufian II, 168 Wn.2d at 468.

Third, the court found that "negligent, reckless, wanton, bad faith, of

intentional noncompliance with the PRA by the agency" was an aggravator. Id. at

908 (boldface omitted); Yousoufian II, 168 Wn.2d at 468. Specifically, the court

ruled that "[t]he evidence supports negligent noncompliance with the PRA by [the

County] because of the duties owed by Clerk Hayes and the breach of those duties

.... However, the evidence does not support a higher level of culpability." Id. The

court reasoned that Knudson did not act negligently because "[s]he continued to act

appropriately in raising concerns and was entitled to rely upon Hoffman's response

to her phone call." Id. As to the involvement of supervisors Panattoni and Dawson,

the court reasoned that "internal deliberations about a non-standard response

demonstrate proper concern and supervision, especially coupled with reaching out

to the requestor to ascertain if they got what he needed." Id. at 908-09.

These are the culpability findings—agency negligence but a lack of bad

faith—^that Hoffman asks us to review de novo. But under the abuse of discretion

standard of review, our task is less to scrutinize the particular culpability label

adopted than to determine whether a reasonable person could find that the supported

Since the parties agree that Hayes' reliance on RCW 42.56.050 was erroneous, we assume, without deciding, that it was. 17 Hoffman v. Kittitas County, No. 96286-3

facts suggest a level ofculpability that,taken together with the remaining Yousoufian

II factors and other appropriate considerations,justifies the penalty imposed.

Finally, regarding the aggravating factor of"a penalty amount necessary to

deter future misconduct by the agency considering the size of the agency and the

facts of the case," Yousoufian II, 168 Wn.2d at 468, the trial court found that

compared with the facts in other reported Washington cases, "[t]he evidence does

not support a finding that this is an egregious violation" in terms of its severity, its

duration, or the number of records in question. CP at 909.

In light of all this, the trial court imposed a penalty of $0.50 per

page/photo/video per day for 246 days, totaling $15,498.00. This penalty was

reasonable and not an abuse of discretion. Hoffman suffered no financial harm as a

result of the County's PRA violation, and the subject matter of his request was not

of public importance. Hoffman, 4 Wn. App. 2d at 500; Yousoufian II, 168 Wn.2d at

468 (listing these as aggravating factors). "Although the daily penalty was low, the

court maximized the number ofrecords eligible for the penalty by assessing an award

for each individual page." Hoffman, 4 Wn. App. 2d at 499. The $15,498.00 penalty

"amounted to an assessment of almost $0.34 per Kittitas County resident on a per

capita basis," which "is commensurate with other PRA violation assessments." Id.

at 500."[Pjenalty awards againstjurisdictions in PRA cases rarely exceed more than

a few dollars per resident." Zinkv. City ofMesa,4 Wn. App. 2d 112, 128, 419 P.3d

18 Hojfman v. Kittitas County, No. 96286-3

847,review denied, 192 Wn.2d 1004(2018). And even the award in Yousoufian II—

whose facts were far more egregious than here, involving "years of delay and

misrepresentation on the part ofthe county"^^—only amounted to $0.19 per resident.

Id.

As to deterrence, "the trial court appropriately observed that the problems

leading up to the County's PRA violation were attributable solely to Hayes and,

given Hayes's retirement from employment, a large penalty would not be necessary

to deter fiature PRA violations." Hoffman,4 Wn. App. 2d at 498. Hayes' negligence

was due to her idiosyncratic understanding of a particular PRA provision rather than

to systemic lapses in training, supervision, or work flow. Indeed, the record shows

every indication that her successor, Knudson, is a model PRA responder. It also

reveals ongoing internal and external training, the availability of legal counsel when

needed, and a system to help employees track their PRA request responses and to

remind them of upcoming deadlines.

In sum,"[t]he award was commensurate with the County's PRA violation and

sufficient to deter future violations." Id. at 500.

III. CONCLUSION

An appellate court reviews the trial court's overall penalty assessment for

abuse of discretion. We decline Hoffman's invitation to review de novo the

"Yousoufian II, 168 Wn.2d at 456. 19 Hoffman v. Kittitas County, No. 96286-3

subsidiary issue of agency culpability. The $15,498 penalty was not an abuse of

discretion.'^ We affirm.

Because Hoffman has not prevailed on appeal, we deny his request for appellate costs, including reasonable appellate attorney fees. See RCW 42.56.550(4). 20 Hoffman v. Kittitas County, No. 96286-3

WE CONCUR:

[ez,