OLYMPIA, Wash. (AP) — An unanimous state Supreme Court on Thursday awarded Supreme Court Justice Richard Sanders four additional documents and additional legal fees in his public records lawsuit against the state.
Sanders (pictured) sued the state in 2005 after he was admonished for talking with residents at the state’s center for violent sexual predators at McNeil Island while some residents had pending court cases. He wants all documents related to the visit, including e-mail among state attorneys.
But the high court affirmed much of an earlier Thurston County Superior Court ruling that held that most of the more than 100 exempt documents Sanders was seeking were properly withheld.
The Supreme Court said four additional e-mails were improperly withheld and should have been released.
The court granted Sanders’ additional legal fees incurred during the appeal, and awarded him a penalty based on the additional documents released, but rejected his request for an increase in the penalty rate against the state.
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Sanders initially asked a Thurston County Superior Court judge in Olympia to award him $614,670 plus $190,178 in legal fees, but the judge ordered that Sanders be paid only $18,112 in penalties and $55,443 in attorney’s fees.
The Supreme Court said Thursday that the penalties that were assessed by the lower court were appropriate. State law calls for penalties to fall within the range of $5-$100 per record, per day they were withheld.
The Thurston County court had set the penalty at $8 per day.
“The major concern we have is that by limiting the fee awards and minimizing the penalty, the opinion will serve as a disincentive to people who want to pursue public record act claims,” said Paul Lawrence, Sanders’ attorney.
In its ruling, the high court also upheld the lower court’s ruling that the state attorney general’s office violated the state’s public record’s act by not adequately explaining to Sanders why it exempted some documents he was seeking.
Justice Debra Stephens, writing for the court, said that agencies that withhold or redact any record must give a brief explanation of how the exemption applies to the document.
“Claimed exemptions cannot be vetted for validity if they are unexplained,” she wrote.
Several exemptions exist to the state’s public disclosure law, including one that allows agencies to withhold records that fall under attorney-client privilege or documents stemming from an agency controversy that would be considered privileged under litigation discovery rules.
“We acknowledge that the language of the public records law requires something more, such as explaining that a document provides legal advice or is requesting legal advice and we’ve been doing that since,” said Dan Sytman, a spokesman for the state attorney general’s office. “But the very low penalty attests to our good faith and overall compliance with the public records act.”
The state Supreme Court did say that it found Thurston County’s interpretation of the attorney-client privilege too broad.
The high court said that the privilege “protects only legal advice” as opposed to all communication between lawyers and clients, as assumed by the lower court.
Sanders, who is up for re-election this year, received criticism for how an earlier ruling he authored could have affected this case.
Sanders wrote the lead opinion last year in a case that raised the amount a Seattle hotel owner, Armen Yousoufian, could seek for King County’s delays in turning over documents.
Sanders’ lawyers used the opinion to re-argue for the higher fines that they had originally sought in the lawsuit against the state. Sanders denied any impropriety, but the high court later tossed out its own ruling over the potential conflict of interest, and the case was reargued without Sanders. The court ultimately issued a new opinion on that case earlier this year, keeping much of the same reasoning but cutting by about half the fine King County must pay for inexcusable delays in responding to a 1997 request for documents.
The ruling largely preserved the analysis that Sanders proposed for trial courts to consider in setting fines under the Public Records Act, including whether an agency acted in bad faith, was negligent or failed to train staff in public records disclosure.
Stephens wrote that even though the Thurston County fine was issued before that ruling, it was still appropriate under current law.
“We find no abuse of discretion in the trial court’s selection of $8 per day per record as the appropriate penalty amount,” she wrote.