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Washington Supreme Court Upholds Per Page Penalties Under the Public Records Act

In a recently issued 5-4 decision, the Washington Supreme Court, in Wade’s Eastside Gun Shop, Inc. v. Department of Labor & Industries, interpreted the Public Records Act (PRA) in a manner that provides very broad discretion to courts in imposing penalties for illegally withholding public records. According to the four dissenting justices (see below), that discretion is now so broad that it is, arguably, without limit. The Supreme Court upheld the trial court’s imposition of per page penalties against the Washington State Department of Labor and Industries (L&I) amounting to over a half a million dollars. This decision is likely to have far-reaching implications.

The case centers on a PRA request that the Seattle Times submitted for access to all of L&I’s records related to lead exposure experienced by employees at Wade’s Eastside Gun Shop. The trial court held, and the Supreme Court agreed, that L&I failed to comply with PRA procedures and to provide the records in a timely manner, and the court imposed separate penalties for different time periods dating from the date of the PRA request to the date the Seattle Times received all responsive records. Agreeing with the lower court, the Supreme Court held that the PRA doesn’t prohibit the calculation of a per page penalty for public records that are improperly withheld, that the categorical “investigative records exemption” didn’t apply to the subject records, and that L&I violated the PRA during each of the time periods at issue.

The following are a couple of takeaways from this decision that I think merit particular attention by agencies:

  • Penalties on a per page basis. Based on the Supreme Court’s analysis, courts in our state have broad discretion under the PRA to impose reasonable penalties on an agency for improperly withholding requested records. See, e.g., RCW 42.56.550. Such broad discretion allows courts to determine the appropriate method of calculating that penalty. Within that discretion, courts can assess penalties per requested record on an individual document basis, divide requests into groups of records, or use some other appropriate basis to determine PRA penalties, including penalties on a per page basis. Courts are given the flexibility to respond appropriately to PRA violations in the face of changing technology.

Practice Tip: Presumably, a court will award a PRA penalty on a per page basis only if that penalty is appropriate based on unique circumstances. The state Supreme Court focused particular attention in the Wade’s decision on the amount of time it took L&I to respond, the lack of explanation provided by L&I regarding how the claimed exemptions applied to the specific records at issue, and L&I’s failure to show why it delayed in producing nonexempt records. This case emphasizes that the timeliness of making records available under the PRA, as well as the appropriateness of an agency’s explanations for claimed exemptions and for its delay in producing nonexempt records, will be of particular significance for a court in imposing PRA penalties.

  • Not all investigative records are categorically exempt. One of L&I’s contentions was that the records at issue were “categorically” exempt under RCW 42.56.240 due to the nature of those records as part of an open investigation. A “categorical” exemption is a blanket exemption that applies to a record or group of records. The court rejected L&I’s assertion of a categorical exemption in this situation, but it recognized that there could be situations in which L&I records could be subject to the investigative records exemption.

Practice Tip: Agencies should claim a categorical exemption under RCW 42.56.240 only if it’s very clear that it applies. The court’s analysis on this point in the Wade’s decision is instructive. The court also explained that, to successfully claim an exemption under RCW 42.56.240 related to effective law enforcement, an agency needs to prove, based on the specific facts at issue, “that the records to be withheld are essential to effective law enforcement.” These situations can be particularly challenging because it may not always be clear when an investigation is officially closed and withholding the records is no longer necessary.

As a closing note, I think the dissenting opinion in the Wade’s decision is particularly noteworthy because it looks ahead to how this decision may play out. Of particularly note is the following from that dissenting opinion, which the five justices in the majority apparently didn’t find convincing:  

While a single word written on a piece of paper can certainly constitute a public record, that does not mean that each word contained within a public record is a separate public record. Every square may be a rectangle, but every rectangle is not a square. Similarly, while a single piece of paper can constitute a public record, it does not mean that every page contained within a public record is a separate public record.

 At the least, the dissent has left us with some food for thought. Buon appetito.  

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About Joe Levan

Joe served as an MRSC Legal Consultant and Legal Manager. He has been a municipal attorney for many years, including as an in-house city attorney, in private practice for two municipal law firms through which he provided litigation and a range of other services to several Washington municipalities, and as part of the in-house legal team for Sound Transit. He no longer works for MRSC.