this, the third appeal of Donna and Jeff Zink's 2003
Public Records Act (PRA) lawsuit against the city of Mesa, we
address whether a trial court may consider the small size of
a jurisdiction and the disproportionate burden on its
taxpayers of a penalty whose amount would be appropriate if
imposed on a larger jurisdiction. Rejecting both parties'
appeals, we hold that the trial court did not err or abuse
its discretion in arriving at a preliminary penalty based on
culpability and then reducing the penalty to an amount ($350
per taxpayer) deemed necessary and sufficient to deter future
address the application of legislation enacted in 2011 that
eliminated a $5 floor on per-day penalties under the PRA and
hold that as remedial legislation, it is retroactive. We
AND PROCEDURAL BACKGROUND
August 2002, the city of Mesa took the position that a
building permit granted to Donna and Jeff Zink for home
repairs in April 2000 had expired for suspension or
abandonment. Zink v. City of Mesa, 137 Wn.App. 271,
273-74, 152 P.3d 1044 (2007) (Zink I). After the
city's board of appeals affirmed the city's decision,
the Zinks filed a petition under LUPA in which they prevailed
following city concessions. Id. at 274. In
Zink I, this court rejected the parties' cross
appeals of the trial court's award of attorney fees.
same month that the city deemed their building permit to have
expired, the Zinks began filing public record requests for
documents held by the city. Zink v. City of
Mesa, 140 Wn.App. 328, 333, 166 P.3d 738 (2007)
(Zink II). From August 2002 to January 31, 2005, the
requests, by the city's count, totaled 172. Id.
Many, but not all, related to the city's decision to
terminate the Zinks' building permit; others related to
the Zinks' "self-described 'watchdog type'
role in the City." Id. In April 2003, the Zinks
filed an action against the city alleging violations of the
Public Disclosure Act, former chapter 42.17
Id. at 334.
first show cause hearing conducted in the matter, the trial
court made no findings on specific alleged violations,
finding instead in general terms that the city had
"'more than substantially complied'" with
the requests, that it was a "'practical
impossibility'" for the city to strictly comply
given the number of requests and its limited manpower, and
that the Zinks' requests "'amounted to unlawful
harassment.'" Id. at 335.
Zink II, this court reversed the trial court and
remanded with directions to enter findings on whether the
city strictly complied with the PRA in the instances
identified by the Zinks. Where violations had occurred, this
court directed the trial court to award penalties, costs, and
attorney fees. Id. at 349.
hearing following remand, the trial court ordered the city to
pay the Zinks a total judgment of about $245, 940, consisting
of $167, 930 in penalties, $5, 700 in costs, and $72, 309 in
attorney fees. Zink v. City of Mesa, 162 Wn.App.
688, 701, 256 P.3d 384 (2011) (Zink III).
Zinks again appealed to this court and the city again cross
appealed. Id. Before the matter was set for
argument, however, the Washington Supreme Court accepted
review of Division One's decision in Yousoufian v.
Office of Ron Sims, 137 Wn.App. 69, 151 P.3d 243 (2007)
(Yousoufian II) on which the trial court in the
Zinks' case had relied in arriving at its per-day penalty
awards. The city's request for a stay of the appeal
pending the issuance of the Supreme Court's decision was
granted by this court and was lifted in May 2010 after the
Supreme Court issued Yousoufian v. Office of Ron
Sims, 168 Wn.2d 444, 229 P.3d 735 (2010)
(Yousoufian III). Zink III, 162 Wn.App. at
Yousoufian III, the Supreme Court recognized that
trial courts would be well served by guidance on how the high
court believed they should exercise their broad discretion to
impose PRA penalties, given the dearth of reported cases.
Yousoufian III, 168 Wn.2d at 463. It announced 16
nonexclusive mitigating and aggravating factors trial courts
should use as a guide in determining penalty amounts.
Id. at 467-68.
decision in this matter issued after the stay was lifted,
dozens of challenges to the trial court's calculations of
the penalty days for the city's 33 violations
were resolved. Zink III, at 706-22, 730. Recognizing
that the trial court had used a now-rejected method for
calculating the amount of the per-day penalties,
however, this court vacated the penalties and remanded with
directions to determine penalty amounts in accordance with
the guidance provided by Yousoufian III.
Id. at 705-06, 730.
years later, in December 2015, the city filed a motion for
partial summary judgment. Among the relief it requested was a
ruling that Substitute House Bill 1899 (SHB 1899), enacted in
May 2011, applied retroactively to the penalty phase of the
PRA proceeding. The 2011 legislation removed what had
formerly been a $5 floor on per-day penalties. Laws of 2011,
ch. 273, § 1 (effective July 22, 2011) amending RCW
42.56.550(4). A new trial court to whom the matter was
assigned following remand ruled that SHB 1899, being
remedial, applied retroactively.
Zinks then filed a motion for assessment of penalties,
attorney fees, and costs against the city, supported by
extensive documentation. The parties agreed that since this
court had resolved the number of penalty days in
Zink III, all that remained was for the trial court
to set penalty amounts.
trial court held a three-day hearing in which it used
individual worksheets to assess the Yousoufian
factors for each violation, indicating, with respect to each
factor, whether it was "strongly present, "
"moderately present, " "not present, " or
" NA [not applicable]." Clerk's Papers (CP) at
2437-69 (some capitalization omitted).
weeks thereafter, the trial court convened a hearing to
deliver an oral ruling. It provided the parties with copies
of its 33 penalty worksheets. The preliminary penalties
identified as appropriate ranged from $1 per day on the low
end to $100 per day on the high end. Some of the penalties
were adjusted for four periods falling between the start
dates established in Zink III and November 7, 2008,
the date that findings, conclusions and an order for the
second show cause hearing were entered.
identifying a calculation error, it was determined that the
total penalty based on the 33 worksheet amounts and the four
calculation periods was $352, 955. The trial court told the
parties it was "a little unsettled" by the $352,
955 figure and would reserve a final ruling until the
presentment of proposed findings and conclusions. Report of
Proceedings (RP) (May 10, 2016) at 55. It rejected a
party's reference to the court as having
"aimed" for a different range, explaining, "I
have not aimed at any number, any gross number. I anticipated
a methodology where I would just apply the factors as
objectively as I could and let the chips fall where they
may." Id. at 54-55. The court added, "I
also told you that my intentions were to then look at that
number to see if I was uncomfortable with it."
Id. at 55. The court told the parties it was going
to give thought to the legal question of whether it had
authority to "go back and do a wholesale adjustment to
the total. And I don't know the answer to that
question." Id. at 56-57. It invited the parties
to brief the issue in connection with their presentation of
proposed findings of fact and conclusions of law.
city's submissions thereafter included a declaration from
its clerk/treasurer identifying the amounts and restrictions
on its 2015 and 2016 tax revenues, and its counsel's
illustration of the impact of the trial court's
preliminary penalty figure, given the city's small size
and limited resources. Comparing Mesa with another city in
Benton County, the city explained:
If Pasco had treated Ms. Zink the way Mesa treated Ms. Zink,
the Court's preliminary penalty award of $352, 955 might
be warranted. But a penalty of that size would
"only" amount to $5 per resident for Pasco, whereas
that same penalty will cost each resident of Mesa $718. If
Pasco was penalized at $718-per-resident, the total penalty
would top $49 million. The City of Mesa suggests that no one
would support giving away $49 million of tax payer dollars
based on the statutory violations of a handful of government
CP at 2899-2900 (footnotes omitted).
hearing on entry of the final order, the trial court told the
parties it had concluded that a $175, 000.00 penalty was
"sufficient to deter future conduct . . . . It is such
an amount that would avoid this windfall to the plaintiffs.
It will certainly sting the city but will not, in my
judgment, cripple them." RP (June 29, 2016) at 59. Its
written findings and conclusions state:
After reaching the preliminary total of $352, 954, the Court
has considered whether that amount was appropriate, taking
into account Mesa's small size, limited resources, and
the deterrent purposes of PRA penalties. Based on this
consideration, the Court finds that the preliminary penalty
award was greater than needed to serve the purposes of PRA
penalties and should be reduced to $175, 000.
CP at 2430. The total judgment awarded was $200, 746.47:
$175, 000.00 for PRA penalties, and $25, 746.47 in attorney
fees and costs incurred in the prior appeal.
Zinks appeal and the city cross appeals.
Zinks' extensive briefing describes each of the
city's 33 public record violations, but their assignments
of error are more limited, requiring us to address only two
legal issues: (1) Does the 2011 legislative amendment
eliminating the $5 floor on the per-day penalty amount apply
retroactively, and (2) does a trial court have discretion
under the PRA to globally reduce penalties based on an
agency's size, limited resources, and the deterrent
purposes of PRA penalties. Br. of Appellant at
city raises two issues in its cross appeal: (1) whether the
trial court abused its discretion by imposing a penalty that
exceeds 100 percent of the city's 2015 annual general
fund unrestricted tax revenue and amounts to an averaged cost
of approximately $350 per resident, and (2) whether
insufficient evidence supports the trial court's finding
that a municipal research agency's memo should have put
the city on notice of the impropriety of some of its document
redactions. Br. of Resp't at 4.
published portion of this decision, we address the second
issue raised by the Zinks and the first issue raised by the
city: a trial court's discretion (and perhaps its duty)
to adjust what would be an appropriate penalty amount in a
typical case, where that penalty amount is more than
necessary to deter a small jurisdiction or agency, to the
point of being financially crippling. We also address the
Zinks' challenge to the trial court's ruling that the
2011 amendment was remedial. We address the remaining issues
in the unpublished portion of the decision.
Issues arising from the trial court's adjustment of its
total penalty based on the size of the agency and the facts
of the case
trial court does not abuse its discretion by treating the
ninth "deterrence" Yousoufian aggravating
factor as the most important aggravating factor in an
mandates an award of "all costs, including reasonable
attorney fees" to a person who prevails against an
agency in an action in the courts seeking the right to
inspect or copy a public record or to receive a response to a
public record request within a reasonable amount of time. RCW
42.56.550(4). In addition,
it shall be within the discretion of the court to
award such person an amount not to exceed one hundred dollars
for each day that he or she was denied the right to inspect
or copy said public record.
Id. (emphasis added). We review a trial court's
award of penalties under the PRA for an abuse of discretion.
Bricker v. Dep't of Labor & Indus., 164
Wn.App. 16, 21, 262 P.3d 121 (2011). An abuse of discretion
occurs when a decision is manifestly unreasonable or
exercised on untenable grounds or for untenable reasons.
Graves v. Emp't Sec. Dep't, 144 Wn.App. 302,
309, 182 P.3d 1004 (2008).
Supreme Court has stated that the PRA penalty "is
intended to 'discourage improper denial of access to
public records and [encourage] adherence to the goals and
procedures dictated by the statute.'" Yousoufian
v. Office of King County Exec., 152 Wn.2d 421, 429-30,
98 P.3d 463 (2004) (Yousoufian I) (alteration in
original) (quoting Hearst Corp. v. Hoppe, 90 Wn.2d
123, 140, 580 P.2d 246 (1978)), quoted in Yousoufian
III, 168 Wn.2d at 461. The PRA's goals and procedures, as
we often repeat, serve as a "strongly worded mandate for
broad disclosure of public records." Hoppe, 90
Wn.2d at 127.
Zink III, this case was remanded so that the trial
court could arrive at a penalty with the guidance provided by
Yousoufian III. By employing its worksheet, the
trial court scrupulously considered each of the aggravating
and mitigating factors identified in that decision. But the
Supreme Court emphasized in Yousoufian III that the
trial court was not required to weigh each factor equally:
We emphasize that the factors may overlap, are offered only
as guidance, may not apply equally or at all in every case,
and are not an exclusive list of appropriate considerations.
Additionally, no one factor should control. These factors
should not infringe upon the ...