Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB 23, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DOUBLE H, L.P., a Washington limited                      No. 29918-0-III
partnership,                                    )
                                                )
                      Appellant,                )         Division Three
                                                )
              v.                                )
                                                )         PUBLISHED OPINION
WASHINGTON DEPARTMENT OF                        )
ECOLOGY,                                        )
                                                )
                      Respondent.               )
                                                )

       Brown, J. ? Double H, L.P. appeals the trial court's penalty calculation against 

the Washington Department of Ecology under the Public Records Act (PRA), chapter 

42.56 RCW.  Double H mainly contends the trial court erred in characterizing the 

withheld records in one group instead of multiple groupings during its calculations and 

thereby reducing the penalty.  We disagree, deny Double H's attorney fee request for 

this appeal, and affirm.

                                            FACTS

       On August 6, 2009, Double H initially requested public records from Ecology 

regarding its investigation of illegal hazardous waste disposal on Double H's farm.   

No. 29918-0-III
Double H, L.P. v. Wash. Dep't of Ecology  

Ecology acknowledged the records request on August 7 (the August 7, 2009 request) 

and estimated responsive records would be produced the week of September 10, 2009. 

Ecology provided sets of records on September 24, 2009, September 30, 2009, and 

January 27, 2010.  Ecology posted an exemption log on its website disclosing 17 

records it withheld from production, in whole or in part, under PRA exemptions.   

       In January 2010, Double H asserted its initial request was continuing and asked 

Ecology for documents created after August 7.  Ecology pointed out a public records 

request was not an open-ended obligation to produce records.  Acceding, Double H 

then made a complying "refresher" request (the January 14, 2010 request) for all public 

records responsive to the August 7 request.  Ecology acknowledged the refresher 

request and estimated the requested information would be produced the week of 

February 18, 2010.  Ecology began providing records responsive to the refresher 

request on March 19.  In all, Ecology produced records on nine occasions that were

responsive to both the initial request and the refresher request, over 3,000 pages.  At 

argument, Double H argued for penalty purposes that records were produced in 16 

groups.  Ecology posted another exemption log on its website, disclosing 37 records 

withheld from production, in whole or in part, under exemption claims.    

       On March 17, 2010, Double H sued Ecology, claiming it had been improperly 

denied access to records and had not been provided a reasonable estimate of the

response time for the refresher request.  The parties filed cross-motions for summary 

judgment, with Ecology conceding some PRA violations.  Ecology sought to resolve all 

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claims with the imposition of a per-day penalty at the low end of the then statutory $5-

$100 range.  Double H sought the imposition of the maximum PRA per-day penalty and 

argued the improperly withheld records should be divided into multiple groups 

corresponding to Ecology's production dates and alleged common legal errors.   

       At the January 2011 summary judgment arguments, the parties acknowledged 

that deciding the number of record groups involved and deciding the appropriate per 

diem penalty would require the court to weigh inferences.  Therefore, the parties 

agreed summary judgment was inappropriate.  The parties instead submitted the case 

to the trial court on the pleadings and affidavits in accordance with Brouillet v. Cowles 

Publishing Co., 114 Wn.2d 788, 793, 791 P.2d 526 (1990).    

       The trial court decided the number of penalty days due was 495 based on the 

difference between the first reasonable estimated response date given by Ecology for 

the first request (September 10, 2009) and the date the last responsive records were 
produced (January 27, 2011).1  The court fixed, and the parties do not dispute, the daily 

penalty at $27 using the methodology of Yousoufian v. Office of Ron Sims, 168 Wn.2d 

444, 459, 229 P.3d 735 (2010) (Yousoufian V).  Critical here, the trial court found one

group of records existed for penalty calculation purposes, reasoning the same subject 

matter existed in both PRA requests.  The court rejected Double H's argument that 

multiple production installments required multiple groups, reasoning:  

              Dividing the records into groups by response dates is artificial and 

       1 Ecology produced responsive records to both requests in July 2011, after 
judgment was entered and while this appeal was pending.  Ecology stipulates the 
penalty period should therefore be increased to 683 days.    

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       would actually discourage governmental agencies from producing records 
       over time as they are discovered and reviewed.  Therefore, the records 
       which Ecology improperly withheld or failed to disclose constitute one 
       group for purposes of calculating the penalty period.  

CP at 1296.  

       The trial court entered judgment for Double H against Ecology, awarding a 

$13,365.00 penalty and $88,659.82 in attorney fees and costs.  Double H appealed. 

                                          ANALYSIS

                                   A.  Standard of Review

       The parties dispute the standard of review.  Double H argues for de novo review 

while Ecology urges review for abuse of discretion.  This disparity is unsurprising 

because, as Ecology correctly notes, Double H conflates counting days with 

determining whether multiple groups should have been created.  

       Double H relies on Yousoufian v. Office of Ron Sims, 152 Wn.2d 421, 98 P.3d 

463 (2004) (Yousoufian II).  The Yousoufian II Court grappled with whether the trial 

court's improperly subtracted 527 days from the total days that records were improperly 

withheld from Mr. Yousoufian, a matter of law.  Id. at 436-38.  Here, the trial court 

declined to create multiple, likely overlapping record groups that would effectively 

increase the penalty and act as a disincentive to early document production in part as 

discovered.  Double H acknowledges "[t]he trial court's decision to count the penalty 

days . . . is not challenged here." Reply Br. of Appellant at 3.  Notably, the parties 

agreed summary judgment was inapposite because the court needed to weigh 

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inferences when deciding groupings.  

       Separating the conflation, we first note deciding the number of penalty days 

involves statutory interpretation, a matter of law we review de novo that is not contested 

here.  Second, deciding record groupings and deciding the per diem penalty rate when 

calculating the penalty amount both involve the exercise of trial court discretion, 

matters we review for abuse of discretion.  A trial court abuses its discretion when it 

makes a manifestly unreasonable decision or a decision based on untenable grounds.  

Yousoufian V (citing Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 

(2006)).  We turn now to the trial court's grouping decision, the gravamen of this 

dispute.

                                    B.  Penalty Grouping

       The issue is whether the trial court erred by abusing its discretion in deciding 

one group existed based on subject matter when calculating the PRA penalty awarded 

to Double H for Ecology's wrongful withholding of public records.  

       Generally, determining a penalty under the PRA is a two-step process.  

Yousoufian II, 152 Wn.2d at 438. The first step is to determine the penalty period, 

which is the number of days a party was denied access to records.  The second step is 

to determine the appropriate penalty amount to be levied per day between $5 and 
$100. RCW 42.56.550(4),2 Yousoufian II, 152 Wn.2d at 438.  

       A person is entitled to a PRA penalty "for each day that he or she was denied 

       2 The legislature amended the statute in 2011 to provide that the daily penalty 
amount may be between zero and one hundred dollars.  Laws of 2011, ch. 273, § 1.  

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the right to inspect or copy" a "public record." RCW 42.56.550(4).  The penalty period 

is thus strictly defined by the number of days a person has been denied a record after it 

should have been produced.  RCW 42.56.550(4) (a penalty is prescribed "for each day"

a person is denied records); see also Yousoufian II, 152 Wn.2d at 437.  Here, as 

explained above, the court calculated 495 days as the penalty period. 

       The PRA embodies two mandates in determining a penalty amount.  First, a 

penalty is mandatory when a requesting party is improperly denied access to a public 

record under the PRA.  RCW 42.56.550(4); Yousoufian II, 152 Wn.2d at 431-33.  

Second, a penalty shall be awarded for each day records are wrongfully withheld.  

RCW 42.56.550(4); Yousoufian II, 152 Wn.2d at 437.  But, as Ecology contends, 

"[b]eyond these mandates, establishing the penalty amount is within the sound 

discretion of the trial court." Br. of Respondent at 10.  As our Supreme Court noted in 

Yousoufian II, a trial court does not "lack[] the ability to determine that multiple requests 

are actually one single request based on the subject matter and timing of the requests."  

Yousoufian II, 152 Wn.2d at 436, n.10.  Even though it argues for multiple groupings, 

Double H acknowledges "[t]here may be circumstances where it is appropriate to group 

multiple requests together, treating them as a single request for purposes of calculating 

the number of penalty days." Br. of Appellant at 15.  

       The PRA does not require records be divided into separate groups based on 

production date.  Indeed, the Court in Sanders v. State, 169 Wn.2d 827, 864, 240 P.3d 

120 (2010) decided after the five Yousoufian cases, approved the trial court's 

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discretionary creation of two groups based on subject.  When a trial court groups 

records together, its decision is reviewed for abuse of discretion.  Sanders, 169 Wn.2d 

at 864; Yousoufian v. Office of Ron Sims, 114 Wn. App. 836, 849, 60 P.3d 667 (2003)

(Yousoufian I).    

       Double H argues the trial court disregarded the existence of two separate 

requests on separate dates, the initial request and the refresher request.  It 

emphasizes its mistaken belief that different sets of records are involved.  The PRA 

does require a refresher request to obtain public records created after an initial 

request.  WAC 44-14-04004(4)(a).  Double H acknowledges "both the initial request 

and the refresher request concerned the same subject matter (i.e., Ecology's 

investigation of Double H)." Br. of Appellant at 14.  And in January 2010, Double H 

asserted its initial request was continuing in nature before making its refresher request 

for newly created documents.  Ecology correctly points out that while different dates of 

production have been used to create groups, "nothing in Yousoufian I implies it is 

necessary for trial courts to create groups based on production dates, or that penalties 

will be insufficient if not based on groups of records." Br. of Respondent at 16.  

Notably, Sanders approved the trial court's creation of two groups based on subject, 

not on production date.  Sanders, 169 Wn.2d at 864.  

       In sum, we conclude the trial court did not err by abusing its discretion in 

rejecting Double H's proposed multiple production groupings in favor of a single same-

subject-based group.  The trial court made a balanced, reasonable decision supported 

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by tenable grounds when selecting the same-subject group:  Avoid strained groupings 

to encourage agencies not to withhold records until fully assembled, promote early 

segmented record production, and undercut the risk of creating multiple penalty-

increasing groups.  In essence, the trial court in its discretion decided Ecology should 

not be punished more severely for its continuous review and release of records under 

the circumstances of this case.  

       Double H requests attorney fees on appeal.  Since it does not prevail here, it is 

not entitled to attorney fees.

       Affirmed.

                                                           _________________________
                                                           Brown, J.

WE CONCUR:

____________________________                               __________________________
Kulik, C.J.                                                Korsmo, J.

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