Court of Appeals issues decision in Kitsap County Prosecuting Attorneys Guild v. Kitsap County

By Charles D. Zimmerman & Julie K. Norton

On May 11, 2010, the Division II Court of Appeals issued a decision in Kitsap County Prosecuting Attorneys Guild v. Kitsap County, No. 39196-1-II, confirming that an award of attorneys fees, costs, and penalties under the Public Records Act (“Act”) is mandatory if a court determines that the government agency wrongfully withholds or fails to disclose public records.

 In Kitsap County, the Kitsap Sun (the “Sun”) filed a public records request on July 21, 2008 with Kitsap County (the “County”) requesting a database of County employees containing the employees’ names, number of years of employment with the County, department assigned to within the County, job title, office phone number, annual pay rate, and town of residence.  On July 25, 2008, the County sent the Sun a “five day letter” acknowledging that it received the Sun’s request. The County stated that “[a]ll documents responsive to this request will be reviewed and prepared for release.  We hope to release these documents no later than  August 8, 2008.”  

On August 8, 2008, the County released all of the requested information except for the employees’ towns of residence.  At the time of release, the County has still not determined whether the employees’ towns of  residence were exempt from disclosure.  In a letter to the Sun, the County stated in part:

 Under the [PRA], residential addresses of public employees and volunteers are exempt from inspection and copying.  See RCW 42.56.250.  It is not clear to the County whether “town of residence” is included within the meaning of “residential  address.”

 The County is taking action to determine whether County employees object to the public release of their “town of residence”.  If employees consider the release of their town of residence to be a violation of the [PRA] or an invasion of privacy then the County may file a declaratory judgment action and ask the court to rule whether employees’ “town of residence” is exempt from public disclosure.

 The County closed the letter by stating that it would decide whether it would file a declaratory action by August 20, 2008.  That same day, the County notified  its employees of the Sun’s request, and sought their feedback on the potential release of their towns of residence.  The County received over 200 employee objections to disclosure of the requested information. 

On August 15, 2008, the Sun sent a letter to the County, claiming that the County had failed to comply with its public records request.  The County responded, asserting that it had complied with the request, and reiterating that it intended to notify the Sun if it would seek judicial review of the request for towns of residence by August 20, 2008. 

However, the County did not notify the Sun if it intended to seek judicial review on August 20, 2008.  Instead, on August 22, 2008, the labor guilds representing County employees filed a petition for declaratory and injunctive relief against the County in Kitsap County Superior Court, seeking to enjoin disclosure of the employees’ towns of residence.  The County then notified the Sun of the guilds’ legal action. 

On August 25, 2008, the County filed an answer to the guilds’ lawsuit, in which it admitted that it “released all of the requested information to…the Kitsap Sun except records containing County employees’ towns of residence.”   The County did not file its own lawsuit seeking an injunction from disclosure.  The court did not enter an order enjoining disclosure.

The guilds then filed a motion for summary judgment, and the Sun moved to intervene.  The County did not oppose the intervention or the guilds’ motion for summary judgment.

On October 14, 2008, the Sun also filed a complaint against the County to enforce its public records request.  The County responded that it had complied with the Act’s procedural requirements, and that it should not be liable for attorneys fees, costs, and penalties in the event the Sun prevailed at trial.

On December 1, 2008, the court grated the Sun’s motion for summary judgment against the County and denied the guilds’ motion.  The court subsequently entered an order holding that the Sun was the prevailing party against the County, and thereby entitled to attorneys fees, costs, and penalties under the Act.  The court ordered the County to pay $20,620 in attorneys fees, $26.55 in costs, and $845 ($5 per day for 169 days) in penalties to the Sun.  The County appealed. 

On appeal, the sole issue before the Division II Court of Appeals was whether the trial court properly imposed attorneys fees, costs, and penalties on the County.  Without reaching the merits of the case, the Court of Appeals affirmed the decision of the trial court.  In reaching its holding, the Court noted that the imposition of penalties under the Act is mandatory, if a party is deemed to have wrongfully withheld records. 

The Court of Appeals reviewed the facts and held as follows:

 There is no question here that the information the Sun requested did not fall under one of the PRA’s precise, specific, and limited exceptions.  Indeed, on appeal, the County does not contend that its employees’ towns of residence were exempt from disclosure.  Accordingly, the County was required to release that information to the Sun in a timely manner.

 …

 The County waited until August 22, when the Guild filed a petition for a declaratory judgment and injunctive relief seeking to enjoin disclosure of the employees’ towns of residence, to inform the Sun that it would not provide the documents until the issue was resolved by the court.  But the County may not refuse to honor a public records request pending a court decision without violating the PRA.  A request for an [in]junction is not a court order enjoining disclosure.  In the absence of an order enjoining disclosure, the County was required to approve or deny the Sun’s PRA request.  Here, the trial court never issued any order enjoining disclosure of the employees’ towns of residence. 

 The PRA mandates full disclosure of public records in a timely manner.  Absent an injunction, the County has no authority to resist disclosing public records until an affected entity files a claim and avoid paying fees and penalties by disclosing them  “voluntarily” thereafter…   

 (emphasis added)

The Court of Appeals cited the Washington State Supreme Court’s recent decision in Yousoufian v. Office of Ron Sims, No. 80081-2, 2010 WL 1225083, to affirm the trial court’s assessment of attorneys fees, costs, and penalties against the County.  Thus, the County was required to pay $21,491.55 for its failure to disclose its employees’ towns of residence.

In this case, the wrongful withholding was the result of the public agency’s failure to obtain a court order (i.e. injunction) preventing disclosure of the information that the agency believed was exempt from disclosure.  Thus, the moral for public agencies is to always disclose information unless it is specifically exempted by statute or case law, and/or the disclosing public agency itself has obtained or been made a party subject to an injunction or court order prohibiting disclosures.  Indicating an intent to seek such a court order is not a substitute for the actual order.

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