From Paben
A new lawsuit asks a judge to impose penalties on city government for failing to immediately provide a document in response to a public records request.
The city manager said staff inadvertently omitted the record but provided it as soon as it was discovered, and he doubts penalties would be allowed under state law.
Attorneys representing the group Business United, filed the lawsuit on Feb. 1 in Whatcom County Superior Court. The group was started by Blaine businessmen Tom Bridge and Dale Schrader, who both opposed the state Department of Transportation’s project to install roundabouts at the Interstate 5 ramps at D Street.
On March 24, 2010, the group sent a records request asking for all city records related to the roundabout project “and the City’s consideration of any permit of such work.” On March 30, city staff responded that “we do not have any permit documents for the State’s project … we have not processed an application for a Land Disturbance Permit,” according to the lawsuit.
Relying on that, the group filed a complaint and motion in Superior Court seeking an injunction to block the project until permits were obtained, the lawsuit states. A judge ultimately declined to halt the project. The roundabouts opened in May 2010.
After the lawsuit and motion for injunction were filed, the city on April 20 provided the documents the group had requested, the lawsuit alleges.
“After they realized that that was a mistake, miraculously, permits appeared,” Bridge said. “By then we were already started down a legal path.”
The documents pulled the rug out of most of Business United’s legal case, he said.
“We wouldn’t have pursued that angle on the lawsuit if they have given us the documents,” he said.
The lawsuit says the group incurred damages of nearly $16,000 in attorneys’ fees. It asks the court to award attorneys’ fees, as well as impose fines on the city. Under state law, a judge may impose fines of up to $100 per day for each day a record is wrongly withheld.
City Manager Gary Tomsic said staff mistakenly left out one document, a letter from the DOT describing what the state was going to do and asking that the city agree to it. But it wasn’t a permit, he said, and, because of that, it was at first overlooked. No city permits were required for the project, he said.
“We thought we have provided him with all of the information that he had requested, and then, subsequently, found out that there was one document that we ran into that was not sent to him,” Tomsic said, “and as soon as that document was discovered, our attorney advised us to get it to him as quickly as possible, which we did.”
Sometimes documents slip through when dealing with large volumes of information. As an example, Tomsic said, a second request from Bridge related to roundabouts required staff to read 9,000 emails. “You can almost bet (documents will be left out) when you’re dealing with volumes of information of that magnitude,” Tomsic said.
The request that’s subject of the lawsuit required staff comb through a much smaller volume of records because it was more specific, he said.
Attorneys’ fees and penalties paid by the city would come from general fund dollars, which are tax dollars that can be used for various expenses.
“With our budget being as tight as it is, $16,000 makes a difference, it really does,” he said.
I talked with open-government attorney Greg Overstreet today and mentioned the above story. He said it would be a perfect candidate for something he and attorney Ramsey Ramerman are doing called co-mediation. He admits that he has a financial interest in this, because he and Ramerman will be charging local governments and records requesters as they get together and mediate a records dispute, but the costs will be much less that fighting it out in court.
Click here to see more on their new website. His blog points to a King 5 story that found that, in 2011, state government paid out $1.7 million to records requesters. Click here to read the article. The article gets Attorney-General Rob McKenna’s take on it too.
What do you think?
No land disturbance permit? So what’s the big deal with Carl Weimer’s road issue out at Cherry Point, no land distrubance permit, its evidently not a requirement, unless you not working for the Democratic Party.
The fastest way to a White House Appointment, Ron Sims(D), where public records are always a secret.
This is the second time our court has reviewed the sufficiency of the penalty that has been imposed by the trial court. Furthermore, more than 12 years have passed since Armen Yousoufian submitted his PRA request to the county and 9 years have gone by since he filed this lawsuit…
Here, as mentioned, the PRA provides no specific indication of how a penalty is to be calculated. It does, however, provide a “strongly worded mandate for broad disclosure of public records.” Hearst Corp., 90 Wash.2d at 127, 580 P.2d 246. The PRA directs us to liberally construe it “to assure that the public interest will be fully protected.” RCW 42.56.030. Its command is unequivocal: “Responses to requests for public records shall be made promptly by agencies ․“ RCW 42.56.520 (emphasis added). Additionally, where the PRA is violated, trial courts must award penalties “at not less than $5 [per day] but not more than $100 [per day].” Yousoufian II, 152 Wash.2d at 433, 98 P.3d 463. The PRA is a forceful reminder that agencies remain accountable to the people of the State of Washington:
The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.
Looks like we have a cottage industry opportunity. Step 1: File onerous and complex public records requests; Step 2: Wait for overworked, underpaid staff to make a clerical error; Step 3: SUE for damages!
Step 4
Have a Brain
PUBLIUS
On what is known best as a INFORMATION HIGHWAY?
Of course, hiding under the sand like a razor clam, and looking to dig deeper, usually results in a broken shell.
Overworked and Underpaid, of course always depends on how much does it cost when McEachran has to attend a real courthouse, clam shovel included.
“yield their sovereignty” or “inherent sovereign power”
State v Ericksen, September 1, 2011 another Ancient 4th Korner Kangaroo Kourts theory tossed in (D)itch?
The Drunks more intellegent than any person employed at 311 Grand Avenue,k from the Basement to the Penthouse.
Why Ken, is there NOT ONE person anywhere who works at 311 Grand Avenue, who even has a slight conceptual understanding of “sovereign?”
Ken Mann -
Correct, a cottage industry. But it pales in comparison to the huge “greenmail” industry run by environmental groups that sue to stop private investment, then collect payoffs to remove their suit, with no real environmental improvement. Just a cash cow to fund meals, lattes and salaries for their activists and attorneys.
Well, the City of Blaine made a mistake – whether willful or not – and this directly caused someone to pay $16,000 in attorney’s fees. It is only that the City of Blaine pay for their own negligence. The penalties of $100 a day are warrented also, as it will make them do a better job next time.
Correction – I should have said “It is only fair that the City of Blaine pay for their own negligence.”
I shed no tears for industry or development sued by environmental groups
since public opposition to any project is a right and,
in the case of pollution allegations,
if they had no merit, no settlement would emerge.
A cash cow won’t invent itself.
But does relying on incomplete information to launch a lawsuit really become the ultimate responsibility of the source of that information?
Weren’t there other ways to uncover which permits had really been drawn
prior to buying court time?
Discovery itself is an art
maybe these guys didn’t practice too well.
Boy that one clerk at Superior Court sure is intimidating.
fyi -
i drive the roundabouts daily, and i still hate them.
Dear Richard,
You might wanna avoid disclosures like that lest some think you incapable of steering your car.
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