Thirty eight years ago, Washington voters approved a potent ballot measure to compel agencies to make government records available for public inspection. But it took the singular persistence of Armen Yousoufian to flush out what the law actually means.
By Tim Connor
On a mid-winter morning in 1999, two women walked into the cavernous north Spokane offices of the Washington Department of Ecology and filed a public records request.
Jan Tenold and Diane Radkey were mothers of asthmatic children and among the founders of Save Our Summers (SOS), a citizen activist group. SOS had been working and meeting with state officials for several months trying to get the agency to enforce the public health protections of the state’s Clean Air Act. Specifically, they wanted Ecology to begin regulating large-scale field burning, the smoke from which can inflict severe respiratory and heart distress on people downwind from the fires.
If Tenold and Radkey were in a sour mood that January morning it was because they’d been duped. While the SOS leaders had received steady assurances from Ecology in the fall of 1998 that a new, scientifically-defensible rule was in the works, top agency officials had actually been meeting privately with farm organization leaders and their lobbyists. Out of the blue, five days into the new year, the state suddenly announced it would allow unregulated burning to continue. There would be no new rule.
The stunning news smacked of a back room deal. Tenold and Radkey and SOS thought the proof of that might be found in Ecology’s files. So they asked for them. While the agency happily buried the SOS volunteers in boxes of records, it withheld the key notes and memos revealing that its top managers had colluded with industry lobbyists to mislead the press and the public.
For example, one of the documents withheld from SOS was literally a script sent to Ecology by a wheat industry lobbyist who went so far as to describe how the industry would publicly pretend to be “lukewarm” to the announcement of its own plan so as to “mask any natural suspicions that ‘the agency caved into the business community.'”
This damning document and others sought by Tenold and Radkey came to light months later and when SOS learned that it had been denied access to the records, it filed suit under the state’s Public Records Act (PRA) in August of 1999. And won.
While a Thurston County judge concluded Ecology wrongfully withheld records and ordered the agency to pay Save Our Summers’s attorney fees, the judge flatly declined to impose a civil penalty on the agency. That’s right. Nothing. Even though the Ecology documents withheld from SOS triggered a state-wide scandal when they’d finally come to light, and even though the judge acknowledged the “smoking gun” nature of the withheld records, he declined to impose a penalty.
SOS could have appealed the verdict. But the group had more pressing litigation priorities, all of them focused on using the law to protect sick kids from smoke.
At the time it was decided, the SOS public records case almost perfectly exemplified the stark disconnect between what the Washington public records law said, and how it was actually being enforced by superior court judges. On the one hand, the text of the law contained what is perhaps the strongest language of any of the nation’s open government laws to compel public disclosure. On the other hand, trial court judges charged with enforcing the law were, at best, reluctant to punish agencies for even brazen abuses like that in the SOS case.
Armen Yousoufian didn’t know it at the time but his public records request in 1997 would be his ticket to years of heartburn and to his notoriety as a Don Quixote-like public figure in an epic public records imbroglio. Yousoufian’s battle was not just against King County but also against a judicial system that largely coddled public agencies who violated state open government laws.
Today, a decade later, things are different. Although the penalty provisions of the law are still not being enforced with the judicial gusto that many open government advocates believe is necessary, the context in which public records violations are adjudicated has changed quite a bit. Now, at least, agencies that fail to comply with public records requests must expect to get penalized if they get sued, and they should expect stiff penalties if their foot-dragging is either egregious or willful. This change came about largely as the result of one very determined man.
His name is Armen Yousoufian. Yousoufian is not a lawyer. He’s not even a crusading journalist. In 1997, when he filed a public records request with King County, he was a Seattle-area hotel owner and real estate investor.
To be sure, Armen Yousoufian had an axe to grind. He was a staunch opponent of the scheme, fronted by King County, to deliver millions of dollars in public subsidies for a new football stadium (Qwest Field) to benefit of Microsoft co-founder and Seattle Seahawks owner Paul Allen. At the time, before the vote on the stadium plan took place (it passed by a mere 51%), Yousoufian thought records on file at King County could make the difference and sway public opinion against the stadium vote. So he asked for them. He didn’t know it at the time but his request was his ticket to years of heartburn and to his notoriety as a Don Quixote-like public figure in an epic public records imbroglio. Yousoufian’s battle was not just against King County but also against a judicial system that largely coddled public agencies who violated state open government laws.
The dark comedy of how King County officials delayed, misled, and flat out lied to Armen Yousoufian is now forever ingrained in Washington case law, part of the record in the epic case of Armen Yousoufian v. The Office of Ron Sims, King County Executive. For all intents and purposes, the case is now over, settled in his favor by a state Supreme Court decision issued in late March of this year.
“Specifically,” the Supreme Court noted in the second of two opinions (2004, 2010) in the Yousoufian case, “the county told Yousoufian that it had produced all the requested records, when in fact it had not. The county also told Yousoufian that archives were being searched and records compiled, when that was not the case. After years of delay and misrepresentation on the part of the county, Yousoufian found it necessary to file suit against the county in order to obtain all of the requested documents. Nevertheless, it would still take another year for the county to completely and accurately respond to Yousoufian’s request.”
As Armen Yousoufian is the first to point out, even though the official record of his case is extensive, there are a number of pivotal facts missing.
Here’s one. At the time he exhausted all patience with King County’s stonewalling to pursue a public records suit, Yousoufian was not strapped for cash. He had money. He had lawyers. He had money to spend on lawyers.
“I was fifty years old when I started this,” he says. “By then I’d had twenty-year relationships with several lawyers. Not one of the lawyers I regularly used would touch it.”
They wouldn’t touch it, he said, because there was a dearth of case law at the time to indicate that public records litigation for private citizens, using private attorneys, was worthwhile.
Center for Justice lawyer Breean Beggs agrees. Before coming to the Center five years ago from Bellingham, Beggs was one of a relative few private attorneys willing to bring an occasional public records case.
“Prior to Armen Yousoufian’s request,” Beggs says, “there was little, if any, definition of penalties” either in the legislative history of the law (including the original voter initiative) or subsequent court rulings.
The penalty provision of the Washington state Public Records Act (RCW 42.56.550 (4)) says this: “(I)t shall be within the discretion of the court to award such person [who prevails against an agency in a public records case] an amount not less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.”
Yousoufian was by no means the only Washingtonian who thought the Washington Public Records Act was quaint, or even moot, without a reliable commitment from the courts to impose stiff penalties on agencies who violated the law. The difference is that he deeply believed it, that he had a case on which that argument could be tested, and that he was wealthy enough to take the financial risk of pursuing it.
Though it took him several months to do so, Yousoufian finally found lawyers willing to take his case (one of them, Michael Brannon, had interned at Beggs’s private firm in Bellingham) and, on March 30, 2000, a public records act lawsuit against King County was filed.
If there is such a thing as a devastating victory, that’s what Yousoufian and open government advocates experienced when King County Superior Court Judge Kathleen Learned issued a thirty-page decision in the case on September 24, 2001. In what, to Yousoufian, was almost cruelly ironic, Judge Learned was clear enough in her withering criticism of King County which, she wrote, “was negligent in the way it responded to Mr. Yousoufian’s PDA request at every step of the way, and this negligence amounted to a lack of good faith.”
Yet, the penalties that Judge Learned imposed for this “lack of good faith” were a pittance. Whereas Yousoufian’s lawyers sought millions of dollars in penalties (based upon the depth of the county’s misconduct, the number of records withheld and the hundreds of days the records were withheld), Judge Learned awarded a mere $25,440.
Even though Judge Learned rejected the county’s argument for “a minimum fine of a few thousand dollars” because “the government incompetence displayed in this case is not justifiable,” she nevertheless awarded the very minimum $5 per day penalty “because the Court finds that the combined total of the penalty and the attorney fees is sufficient to deter future similar inappropriate conduct.”
Judge Learned’s decision still rings in Armen Yousoufian’s ears. He was incredulous then and the passage of time has not dampened his sarcasm. How, he wondered, could a $25,440 penalty serve to “deter future similar inappropriate conduct” in the context of a project involving literally hundreds of millions of dollars?
Yousoufian says this issue of proportionality is one that struck him when he was first considering bringing his suit back in 1997. At the time, the new Seattle Mariners baseball stadium–which itself was at the heart of a legal controversy over the use of public funds–was being built just south of where the new Seahawks stadium was planned. A mistake had been made that required an additional dose of concrete, that would take a day and cost $1 million.
“One million dollars seems like a lot of money,” Armen Yousoufian says, “but it’s one day’s concrete pour. That’s all it is. It’s one extra day on a project of that size.”
His point being this: on large public works projects, what’s to stop an agency from blatantly ignoring a public records request if the documents sought are deemed to pose either a political or potential legal threat to the project? Because the purpose of the penalty provision in the public records act is to deter the agency from withholding the records, it would stand to reason that the penalty ought to construed in that light.
Yousoufian is not the only advocate for this point of view, but he’s earned the distinction of being the most persistent. One who vigorously agrees with him is state Supreme Court Justice Richard Sanders, who first got to weigh in on Yousoufian’s public records saga when Yousoufian’s appeal of Judge Learned’s ruling reached the state Supreme Court in early 2004. Noting that public financing for the Qwest Field project was estimated at $300 million, Sanders lambasted King County’s handling of the Yousoufian records request.
“Such devious misconduct cannot be equated to an agency acting with the utmost good faith,” Sanders wrote. “Moreover, the stakes of this project were enormous. Even if King County acted with such good faith, its failure to comply with Mr. Yousoufian’s PDA request affected the ‘public concern’ far more than any other failure resulting in a mere inconsequential inconvenience to the litigant alone. Accordingly a penalty at or near $100 per day is not only necessary but also required to punish King County’s misconduct. Courts are routinely used to punish private citizens where the context so demands (treble damages authorized for violation of [the] Consumer Protection Act). There is simply no justification for an allegedly impartial court to alter that approach when it comes to government.”
Unfortunately for Yousoufian and advocates of a strong state public records law, Sanders was writing as one of four dissenters to the Supreme Court’s September, 2004, ruling in what is known as Yousoufian 1.
Most significantly, the majority opinion in Yousoufian 1 simply removed the factor that could lead to public records penalties equal to, say, a day’s worth of concrete at a large baseball stadium. Whereas the law could previously be read to say that an agency was liable to pay penalities on each “public record” it wrongly withheld from a requestor, the court in Yousoufian 1 changed that. For all intents and purposes, the court rewrote the statute to say that it “does not require the assessment of per day penalties for each requested record.”
“Although the PDA’s purpose is to promote access to public records,” then-Chief Justice Gerry Alexander wrote for the majority, “this purpose is better served by increasing the penalty based on the agency’s culpability than it is by basing the penalty on the size of the plaintiff’s request. Indeed, it seems unlikely that the legislature intended to authorize a penalty for Yousoufian once estimated at between $1,534,855 and $30,697,100, considering that the county did not act in bad faith.” (Alexander’s choice of words is noteworthy here, given that Judge Learned ruled both that the county “demonstrated a lack of good faith” in its response to Yousoufian, but not “bad faith in the sense of intentional nondisclosure.”)
The dark comedy of how King County officials delayed, misled, and flat out lied to Armen Yousoufian is now forever ingrained in Washington case law, part of the record in the epic case of Armen Yousoufian v. The Office of Ron Sims, King County Executive.
The expressed intent of the court majority decision in Yousoufian 1 was to get at agency culpability. Yet, the way it profoundly altered the penalty equation all but removed the potential for the kind of public records penalties that would make for a powerful deterrent. If a $100 a day penalty is assessed to 50 withheld documents, then the penalty for a six month violation is $900,000. On the other hand, if the 50 withheld records are one record, then the maximum penalty is only $18,000, and very unlikely to even match the legal fees in the case.
Justice Sanders, for his part, hammered the court majority in Yousoufian 1, which, he wrote, “abdicates its duty to enforce the PDA’s strongly worded mandate” by “rewriting the statute to dispense with the per record penalty.”
Despite the court’s ruling in Yousoufian 1, the case was far from over. Depending on your point of view, the state Supreme Court had either clarified or brazenly rewritten the public records act to preclude per record penalties. But it still left unsettled the question of how trial courts should assign penalties when agencies were found to have illegally withheld records. In Yousoufian 1, the court upheld an important Court of Appeals decision in reaffirming that Judge Learned had abused her judicial discretion by imposing the minimum daily penalty ($5 per day) even after concluding that King County had demonstrated a lack of good faith in responding to Yousoufian. In other words, $25,440 just wasn’t going to cut it.
The net result is that the case had to go back to the trial court, in King County, for a new decision on what the penalties should be.
For better or for worse, Yousoufian’s case was forcing Washington courts to clear their throats on how seriously state agencies should take the public records act. Yet, in practical terms, that was only part of the answer in determining how the law would work outside the courtrooms. In the real world, unless citizens are willing to take agencies to court over violations, then there is no practical deterrent for agencies to hide or destroy public records that could embarrass agency decision-makers. On this point, it is worth noting that even though he had prevailed on the matter of liability, Yousoufian says he was still $30,000 in the hole in late 2004. This was because of the way Judge Learned had “discounted” his legal expenses, thus not enabling him to recover his legal costs in full, even though he had, by law, prevailed against the agency.
Though the courts recent rulings mean he is sure (after the final assignment of fees and penalties) to come out ahead in terms of recovering his out of pocket costs for bringing the suit, it’s still sobering to consider that Yousoufian is wealthier than most Washingtonians, and that if an average wage earner had brought his suit, it might well have forced him or her into bankruptcy, even though King County was found liable for serious violations of the public records act.
There were other reverberations from Yousoufian’s case. In Spokane, Camas Magazine (working with the Center for Justice) had filed a major public records act lawsuit against the City of Spokane in early 2001. The lawsuit stemmed from public records requests I’d filed in 2000, as the lead investigative reporter for the on-line magazine. The city, we alleged, had illegally withheld hundreds of records related to the River Park Square public/private partnership. Many of the illegally withheld documents would surface as part of the successful civil securities fraud litigation against the city and the Cowles real estate companies that owned RPS. The documents revealed a stunning level of active complicity on the part of elected city leaders in keeping key details of the fraudulent RPS transaction from bond buyers and the public. Moreover, the records had been withheld for several years, and thus the number of penalty days involved in the litigation was in the hundreds.
Both the magazine and the Center for Justice saw the RPS documents case as an opportunity to push the argument that the spirit, and letter, of the Public Records Act is to deter just the sort of misconduct that the RPS secret documents revealed. And given the size of a project like RPS–where the direct and indirect leveraging of public funds was in the tens of millions of dollars, at least–it made sense for the courts to consider penalties of six and seven figures to firmly discourage agencies from hiding key information about the exposure of public funds.
“Looking back at the work that the Center was doing on River Park Square, that was an argument we wanted to make,” Beggs said, “that in a sixty million dollar deal, you’d better come up with enough penalties to make sure they wouldn’t do it again. Or they would do the same thing again.”
By 2005 Camas won two superior court judgments against the City netting well over $100,000 in fees and penalties. After a favorable Supreme Court ruling on a procedural issue, Camas ultimately settled the heart of the RPS case in late 2006 for an additional $299,000 and a public apology from the city expressing its “deep regret” for having violated the state’s public records law in failing to turn over the requested documents.
Back in King County, the “good” news was that, by 2005, Armen Yousoufian finally got into the black, at least on paper. Judge Learned had retired, but her replacement, Judge Michael Hayden, upped the $5 per day penalties, to $15 per day. Including an additional correction upping the number of penalty days, Judge Hayden’s ruling brought Yousoufian’s on paper penalties to $123,000, plus an additional $171,000 in attorney fee reimbursements.
Though Yousoufian could now say he’d at least recovered his expenses, the ruling was by no means a victory. For a man determined to use the courts to make the point that the state’s public record law had to have some teeth, Armen Yousoufian now had two nominal victories that both amounted to bitter defeats. Even the Seattle Times reported that Judge Hayden’s decision meant Yousoufian had “lost an eight-year court battle” because of the paltry penalties the judge had assigned.
“It’s peanuts to the county,” one of Yousoufian’s attorneys told the paper, “and it won’t change their behavior.”
Said Yousoufian: “This outcome means most people will never get a lawyer to take such a case. All in all, it’s bad for the public and another sad day for democracy.”
So Yousoufian appealed, yet again. And, once again, a state Court of Appeals panel found, unanimously, that the trial court had abused its discretion in the case by assigning such a small per day penalty. The appeals court remanded the case back to Judge Hayden. But King County petitioned the Supreme Court, seeking to uphold the $15 per day penalties as the last word.
There were more agonizing twists and turns to come though. When the Supreme Court issued its second opinion in Yousoufian v. Office of Ron Sims in January of 2009, it was Justice Sanders–the courts leading advocate for stiff enforcement of the law–who wrote the majority decision. And Justice Sanders squarely focused in on the point that both Yousoufian’s lawyers and the Camas lawyers at the Center for Justice were trying to make about the need for high penalties as a deterrent to public misconduct on high budget projects like Qwest Field and River Park Square.
“As the trial judge found,” Justice Sanders wrote for the majority, “with proper diligence and attention, King County could have responded accurately to Yousoufian within five days. The potential for public harm was high; the requested records tested the veracity of King County’s assertions regarding a potential referendum on a $300 million public financing scheme. The request was time sensitive, seeking documents relevant to the upcoming referendum, whereas disclosure of these documents was delayed for years beyond the election day without justification.” Thus, “proper deterrence for King County and others clearly requires a penalty at the high end of the penalty range.”
The Supreme Court didn’t assign penalties in the January 2009 decision, but it remanded the case yet again back to the trial court with instructions. Those instructions were clearly intended to thwart the traditional bias of trial courts [amply demonstrated in the Yousoufian case] of fixing on the low end of the penalty range and letting agencies off with slaps on the wrists.
Justice Sanders’s opinion spelled out the criteria by which penalties should be assigned, crediting agencies for responsiveness but also punishing them for demonstrated negligence and/or bad faith. Moreover, his majority opinion included unprecedented instructions to trial courts ordering them to consider “a penalty amount necessary to deter future misconduct considering the size of the agency and the facts of the case.”
This, in essence, had been Armen Yousoufian’s argument for ten years–that a public records penalty has to be large enough to discourage an agency from willfully, or even casually, ignoring the law.
But it didn’t quite stick. Before the trial court could even convene to impose new penalties in the case, the Seattle Post-Intelligencer reported that the opinion’s author, Justice Sanders, stood to gain financially from the majority opinion that he authored. Justice Sanders, the newspaper reported, had filed his own public records case in Thurston County. The court ruled in Judge Sanders’s favor but Sanders decided to appeal the the trial court’s decision on the size of the penalty awarded to him as the prevailing party.
In short order, the January 2009 decision was voided, and the Supreme Court, this time with Justice Sanders recusing himself, would essentially do the case over, now for a third time.
By 2005, Armen Yousoufian had two nominal victories that both amounted to bitter defeats. Even the Seattle Times reported that Judge Hayden’s decision to increase penalties to $15 a day meant Yousoufian had “lost an eight-year court battle” because of the paltry penalties the judge had assigned. “It’s peanuts to the county,” one of Yousoufian’s attorneys told the paper, “and it won’t change their behavior.”
Would the Washington Supreme Court–absent its leading voice for a strong public records law–affirm the essence of Justice Sanders’s earlier opinion? Or would it go backwards?
The answer came on March 25th of this year. On paper, at least, the final, final word from the Supreme Court in the Yousoufian case differs little from the opinion Justice Sanders wrote 14 months earlier. Moreover, it resembled the earlier decision in laying out a clear set of criteria that trial courts can use to assess penalties.
For example, the court majority agreed that “a penalty should reflect the significance of the project” to which the public records request relates and that this factor should be construed in favor of the requester, even if there’s no clear evidence that the denial of the records resulted in “actual public harm.” It also reiterated that, in setting penalties, “(t)he penalty must be an adequate incentive to induce future compliance,” and that the penalty amount should depend, in part, on the penalty needed to deter the agency, depending on its size.
In one significant departure from guidance offered by the Center for Justice and other open government advocates, the court majority chose not to instruct trial court judges to start at the middle of the penalty range ($52.50 per day) and work up or down from that number, depending on factual indicators of good faith or bad.
Instead, the decision written by Justice Alexander, stated: “Trial courts may exercise their considerable discretion under the PRA’s penalty provisions in deciding where to begin a penalty determination.”
Then the Supreme Court took one more step. Rather than instructing the “usual procedure” of remanding the case back to the trial court for penalties, the court in essence said that a decade in the courts for Armen Yousoufian was quite enough.
“(I)n light of the unique circumstances and procedural history of this case,” Justice Alexander wrote, “we are inclined to set the daily penalty amount in order to bring this dispute to a close. We hold that based upon the aforementioned factors the appropriate penalty is $45 per day.”
Multipled by 8,252 days, that brought Yousoufian’s penalty up to $371,340, (plus additional attorney fees and costs associated with the appeal). Thus, the penalties were nearly 15 times greater than those originally awarded by Judge Learned, but still several times less than he’d originally sought.
When he learned of the decision Yousoufian said he was encouraged by much of the court’s language in vindicating his argument that the trial courts had abused their discretion in assigning such low penalties. And yet he was still baffled by the $45 per day.
“Why that number?” Armen Yousoufian asked in the aftermath of the Supreme Court’s March 25th decision. After all the egregious facts found by the trial court as to King County’s lack of “good faith,” he couldn’t figure out why the court majority had settled on such a low daily penalty.
“Why doesn’t it even get to the half way point? [of the statutory penalty range]” Yousoufian asked.
So this is where Armen Yousoufian had come out of the court system. After a decade of legal battles he’d finally gotten a decision from the Supreme Court in which the words of the decision vindicated him. Still, the bottom line of the decision, reflected in the penalty amount, left him deeply perplexed. When I spoke to him in the days following the Supreme Court’s March 25th ruling he was still thinking that perhaps he’d lost more than he’d won. He had long hoped his case would send an unmistakable message to agencies that they avoid compliance with the Public Records Act at their peril. He was by no means persuaded that he’d achieved his goal.
Beggs said he read the court’s decision a little differently, although he says he understands Yousoufian’s ambivalence.
“The short answer is that it kind of splits the baby,” Beggs says. Coupled with the Washington legislature’s recent decision to impose a one year statute of limitations on the public records act, Beggs says the penalty criteria the Supreme Court adopted through its two lasting rulings on the Yousoufian case will not encourage typical private litigation law firms to get involved in Washington public records suits.
“You’re not going to have an Armen Yousoufian coming in and saying, ‘I’ve got three years of penalties if I win,'” Beggs said. “But a private firm with some expertise in this area of the law can make money if they’re careful on which ones they choose. Before this [latest] decision, it was narrowed. If anything, this decision I think expands it a little. It’s better. It makes it more predictable and what lawyers really need is predictability. For agencies it means they will be paying out more money in penalties than they have in the past if they are found to have violated the law, but not paying so much money that anyone is going to get rich.”