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King County fine too small in public records case, Supreme Court rules

In what some are already calling a significant victory for open government, the state Supreme Court ruled Thursday that King County’s $124,000 fine for failing to deliver up hundreds of pages of documents to Islander Armen Yousoufian is far too small.

Saying they “deceived and misinformed” Yousoufian when it took county officials nearly four years and 11 written requests to fully comply with the state’s public disclosure law, the state’s highest court sent the case back to King County Superior Court to set a higher per-day penalty for what it called the county’s “negligent” behavior.

State law says the fine for failure to comply with the open government act can vary from $5 to $100 per day and per document. The lower court initially set the fine at $5 and then, upon a court-ordered review, $15. But neither is sufficient, the Supreme Court said in a plurality opinion written by Justice Richard Sanders, in part because the county is the wealthiest and largest in the state.

“A flea bite does little to deter an elephant,” Sanders wrote in a line that is already being repeated in blogs about the issue.

Yousoufian, 61, who has become something of a cause celebre in open-government circles for his 12-year battle with the county over documents, hailed the decision — the fourth written opinion since he sued the county in March 2000.

“I feel vindicated,” he said. “They finally put the teeth into this law.”

A spokesperson for County Executive Ron Sims declined to comment on the actual decision but said the county has made significant strides in improving the way it handles public disclosure requests.

“We have increased training; we have a written protocol; and we work closely with the prosecuting attorney’s office,” said Carolyn Duncan, Sims’ communications director. “King County has taken substantive steps to ensure that all public disclosure requests are treated in a timely and lawful manner.”

But Stewart Jay, a constitutional law professor at the University of Washington and a Vashon resident, said the decision was a harsh indictment of the county’s behavior. When the trial court takes another look at the issue, he added, the county will likely end up facing a much larger fine.

“The message is very clear — that King County is going to get slammed tremendously for this,” he said. “I think King County Superior Court is going to raise the penalty considerably.”

Yousoufian, known in the region for the way he bulldogs agencies to comply with the state’s rigorous public disclosure and open meeting laws, asked the county in early June 1997 to turn over documents pertaining to the economic impact of the then-proposed football stadium. A referendum asking voters to finance $300 million for the stadium was slated to come before voters on June 17 of that year.

According to Sanders’ opinion, signed by Justices Charles Johnson, Mary Fairhurst and James Johnson, what followed Yousoufian’s request was a multi-year runaround, with one official after another either failing to deliver the documents, telling him they didn’t exist or suggesting he already had everything he had asked for.

Sounding exasperated, Sanders castigated the county for its “years of delay, misrepresentation and ineptitude.”

“King County told Yousoufian it produced all the requested documents, when in fact it had not. King County told Yousoufian archives were being searched and records compiled, when in fact they were not. King County told Yousoufian the information was located elsewhere, when in fact it was not,” Sanders wrote.

In ordering the trial court to set the fine at a much higher rate, Sanders added that it needs to consider “the potential for public harm.”

“Here, the requested records dealt with a $300 million, publicly financed project that was subject to referendum, where time was of the essence,” Sanders added. “The potential for public harm is obvious.”

This is the second time the case has made its way to the state’s highest court, and in a sign of how complex the issue has become, the justices issued five separate opinions on the matter.

Justice Susan Owens, in her dissent, said the $124,000 fine was appropriate and criticized Sanders for telling lower courts to follow what she called a confusing process to determine fines in such cases. Also signing the dissent were Justices Barbara Madsen and Karen G. Seinfeld, sitting temporarily.

At $124,000, the county’s fine was already the highest in the history of the public disclosure act. If the trial court judge sets the fine at the high end of the scale, as Sanders’ opinion calls for, Yousoufian could receive an award of more than $800,000; the county will also have to pay his legal fees, which he said are more than $400,000.

Jay, who read all five opinions, called Sanders’ plurality opinion “a powerful decision” that will likely govern public agencies for years to come.

“Any agency that does not now thoroughly review its procedures to ensure a timely response is inviting not only tremendous penalties but also tremendous criticism on the part of the citizenry,” he said, adding county residents should be aghast at the county’s costly behavior.

“In a democracy, it’s a tremendous damage to the citizenry when you don’t have transparent government,” Jay said.

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