Court ruling eases open-records penalties

OLYMPIA - Proponents of open government took another hit last week when the Washington State Supreme Court ruled 6-3 to reduce the amount of penalties an agency can be fined for violating the Public Disclosure Act.

Passed by initiative in 1972, the Public Disclosure Act requires that most records maintained by state, county and city governments be made available to members of the public for inspection and copying.

The Sept. 30 ruling states that agencies need only be fined per day for violating the law and not fined per record, per day for each record illegally withheld.

"This decision effectively de-fangs the enforcement provision of the act because it is now no more costly for an agency to unlawfully withhold one record than to withhold 10,000 records," said Building Industry Association of Washington Counsel Tim Ford, who filed a brief in the case on behalf of the group.

The case stems from a 1997 document request by Seattle hotel magnate Armen Yousoufian to King County regarding the economic benefits of the newly proposed football stadium project for the city's downtown. The documents were slow in coming, and many were missing, according to Yousoufian, who took his case to King County Superior Court. The documents were delayed a total of 936 days.

A judge ruled that the county failed to turn over more than 100 documents, and even went as far as to deny having several. The county court could have penalizes a government agency $5 to $100 per day for each record it failed to produce. The ruling stated that a potential fine of $1.5 million was too harsh and reduced the fine to about $25,000, adding that the documents could be bundled. The county was assessed the penalty based on $5 per bundle, not per document.

Yousoufian took his case to the Supreme Court.

The Evergreen Freedom Foundation has used the decision to take aim at Washington State Attorney General Christine Gregoire, who filed briefs in both cases, the last of which urged the court to overturn its ruling and assess the fines on a per-bundle basis.

"Rather than act as a chief defender of our pubic records law, Gregoire has used her position as attorney general to turn the law on its head," said Bob Williams, Evergreen Freedom Foundation president.

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