Archive for the ‘Washington Supreme Court Opinion’ category

Fitzpatrick v. Okanogan County – Flood Control Projects

November 9, 2010

In Fitzpatrick v. Okanogan County, 169 Wn.2d 598 (2010),  the Supreme Court held that the County and Washington State had no immunity from liability for an inverse condemnation claim arising out of the construction of a flood control project.  The County and the State had made major improvements to a dike located one-half mile upstream of the plaintiffs’ property, which was designed to provide flood protection to Highway 20 and some other property.  Hydrogeologist reports indicated that the dike work impacted the river by cutting off natural overflow channels, thereby compressing more flood flow into the main channel and reducing the flood conveyance capacity of the river upon which the plaintiffs’ property was situated.  During a flood event, the water washed away the plaintiffs’ home.  The Supreme Court affirmed that the common enemy doctrine did not apply, which allows landowners to alter the flow of surface water to the detriment of neighbors, so long as they do not block a watercourse or natural drainway.  Instead, the Court applied the “natural watercouse rule,” which prevents parties from interfering or diverting water from a natural watercourse and damaging other properties.  Essentially, the Court concluded that the water damaging the plaintiffs’ property was water within a natural watercourse – not surface water – which subjected the County and State to liability. 

This case is troubling since many governmental agencies either actively engage in constructing flood control projects or indirectly support private citizens who sandbag their property to prevent flooding.  Apparently, now flood waters which have formed a channel when they jump the banks of the river cannot be prevented without providing for this capacity in another area of the floodplain.  Presumably flood waters that sheet flow over the floodplain would still be considered outlaw waters subject to the common enemy doctrine.

Arbitration Clauses & Statute of Limitations

October 20, 2010

The Washington Supreme Court recently ruled in Broom v. Morgan Stanley DW, Inc. that statutes of limitations under state law do not apply to agreements governed by the Washington Arbitration Act unless the parties expressly agreed that the statute of limitations would apply.  This case may apply to municipalities that have incorporated arbitration clauses into their agreements, though the Washington Arbitration Act does not apply to employment agreements or collective bargaining agreements.  Further explanation of this case can be found here, on OMW’s Healthcare Law Blog.  Please contact your city attorney if you have any questions regarding your agreements containing arbitration clauses.

O’Neill v. City of Shoreline – Metadata

October 15, 2010

The Supreme Court recently affirmed that metadata is a public record.  However, a normal public records request for an e-mail does not include a request for metadata unless metadata is specifically mentioned and requested.  This case is a good reminder of the dangers of using personal computers for city or agency business, as the Court held the City of Shoreline violated the Public Records Act if (1) the City (or the Deputy Mayor) refused to search the Deputy Mayor’s hard drive for the missing metadata that was requested; (2) the City could not locate the missing metadata after a search; or (3) located the metadata, but the metadata was different than the metadata already disclosed pursuant to the requests.  In addition, this case is a reminder that public records, including associated metadata if requested, cannot be deleted when a records request is pending.  If you have any questions about public records management or retention, please contact your city attorney. 

The O’Neill majority opinion is available to view here.

Supreme Court Assesses Penalty of $371,340 for Public Records Act Violation

March 29, 2010

The Supreme Court issued its decision in Yousoufian v. Office of Ron Sims, assessing a penalty for violation of the Public Records Act at $45 per day for 8,252 days (differing lengths of time for various categories of records), for a total penalty of $371,340.  Attorneys fees will be added to this total.

In 1997 Mr. Yousoufian made two public records requests to the Office of the King County Executive for records related to studies on sports stadiums.  Over the course of several months, King County released many of the records requested, but not all.  In March of 2000, Mr. Yousoufian filed suit against the County.  King County located additional responsive records and provided those records to Mr. Yousoufian.  The trial court found that King County’s delay in releasing the records violated the Public Records Act (“PRA”) and awarded penalties to Yousoufian at the rate of $5 per day.  Yousoufian appealed the method of calculation and penalty to the Court of Appeals.  In 2004 the Court of Appeals held that the method of calculation was appropriate (per category of records vs. per record), but that a penalty of $5 per day was an abuse of judicial discretion.  On review, the Supreme Court agreed that the $5 penalty was unreasonable considering that the County acted with gross negligence and remanded to the trial court for imposition of penalties greater than the $5 per day minimum.  On remand, the trial court imposed a penalty of $15 per day.  Yousoufian again appealed, claiming the $15 per day penalty was not enough.  The Court of Appeals agreed.  The County then petitioned for review by the Supreme Court.

In a 5-to-4 decision, the Supreme Court affirmed the Court of Appeals, holding that the trial court’s penalty of $15 per day was an abuse of discretion.  In its analysis, the Court began by recognizing the PRA provides no specific indication on how a penalty is to be calculated, then turned to the few reported cases dealing with penalties.  Those cases provide that the existence or absence of bad faith and agency culpability are factors to consider in setting the penalty, along with foreseeable economic loss and the public importance of the issue to which the request relates.  In addition, the Court stated that deterrence is another factor to consider in determining the penalty.  The Court determined that the abuse of discretion standard was not enough, and given the few published cases to offer guidance to trial courts, followed past precedence of reviewing courts providing guidance to trial court judges in exercising their discretionary authority.  The Court set out mitigating factors that may serve to decrease the penalty, including: (1) lack of clarity of the request; (2) agency’s prompt response or legitimate follow-up inquiry for clarification; (3) agency’s good faith, honest, timely and strict compliance with PRA procedural requirements; (4) proper training and supervision; (5) reasonableness of explanation for noncompliance; (6) helpfulness of the agency; and (7) the existence of agency systems to track and retrieve public records.  The aggravating factors that may support increasing the penalty include: (1) delayed response by the agency, especially in circumstances when time is of the essence; (2) lack of strict compliance with procedural requirements (3) lack of proper training and supervision; (4) unreasonableness of any explanation for noncompliance; (5) negligent, reckless, wanton, bad faith or intentional noncompliance with the PRA; (6) dishonesty; (7) public importance of the issue to which the request is related (where importance was foreseeable to the agency); (8) personal economic loss (where foreseeable to the agency); and (9) deterrence considering the size of the agency and the facts of the case.

The Supreme Court’s guidance to judges in setting penalties is a helpful roadmap for agencies to consider as they process public records requests.  Training is essential to avoid violations in the first place, but it may also mitigate penalties in the event a violation is found.

Clarification Regarding Privilege/Exemption Logs Under Public Records Act

February 2, 2010

Our office continues to receive numerous inquiries from our public agency clients regarding their responsibility to complete a privilege/exemption log in response to a request for public records under the Public Records Act (“PRA”), located at RCW 42.56, et. seq.  A series of reported and unreported cases from Washington Courts over the last calendar year has underscored the importance of preparing a timely, complete, and accurate privilege/exemption log in response to any and all public records requests wherein records will be withheld due to exemption or privilege.

Prior to January 22, 2009, a public agency desiring to withhold records in response to a public records request due to exemption or privilege was required to provide the requestor with the claimed exemption, and a brief explanation of how the exemption applies to the record or portion withheld. RCW 42.56.210(3).  In Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243 (1994) (“Paws II”), the Washington Supreme Court attempted to clarify the statutory requirement, providing as follows:

Silent withholding would allow an agency to retain a record or portion without providing the required link to a specific exemption, and without providing the required explanation of how the exemption applies to the specific record withheld. The Public Records Act does not allow silent withholding of entire documents or records, any more than it allows silent editing of documents or records. Failure to reveal that some records have been withheld in their entirety gives requesters the misleading impression that all documents relevant to the request have been disclosed. Moreover, without a specific identification of each individual record withheld in its entirety, the reviewing court’s ability to conduct the statutorily required de novo review is vitiated.

 Id. at 270.

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Post v. City of Tacoma – Application of LUPA and Procedural Due Process to Civil Penalties

November 2, 2009

In Post, the City of Tacoma imposed successive civil penalties for violations of the building code, without providing an opportunity for administrative review after each penalty was imposed.  In a plurality opinion, the Supreme Court majority held that because there was no opportunity for review after each penalty was assessed, the property owner’s procedural due process rights were violated.  Furthermore, LUPA’s 21-day statute of limitations did not apply to bar the plaintiff’s claims because Tacoma had not created a civil infraction system that provided the same procedural protections as afforded in the judicial system.  Consequently, the civil penalties had to be enforced in courts of limited jurisdiction, an exception to LUPA according to RCW 36.70C.020(2)(c).  Cities should ensure that they provide an opportunity for administrative review after each civil penalty is imposed.  For example, if the building code allows for the building official to impose civil penalties each day a property is in violation of the code, there must be an opportunity for a hearing for each civil penalty assessed.