- Associated Press - Thursday, March 24, 2016

SEATTLE (AP) - The Washington Supreme Court has upheld a $502,000 penalty for Public Records Act violations by the state Department of Labor and Industries, in a ruling that affirms judges can calculate such fines based on each page of a withheld record.

The 5-4 decision Thursday came in a lawsuit by The Seattle Times. The newspaper sought records about workers’ or customers’ exposure to lead dust at a gun shop in Bellevue as part of a broader examination that found outdated industry-safety standards, reckless shooting-range owners and lax regulation have contributed to hundreds of lead-poisoning cases nationwide.

Labor and Industries said it withheld documents under a categorical Public Records Act exemption for records that might jeopardize a law enforcement investigation. The majority said that was inappropriate because the department’s cases are unlike active criminal investigations, largely because employers already know if they’re being investigated.

“The plain language of the statute and our case law necessitate finding that trial courts have broad discretion to determine the appropriate method of calculating a PRA penalty, and nothing prohibits doing so on a per page basis,” Justice Debra Stephens wrote for the majority.

The high court had previously held that lower court judges can divide records into categories and award per-day penalties for each category. Stephens wrote that the majority’s decision was a logical extension of that, but the dissenting justices said the ruling strains common sense and effectively removes all limits on Public Records Act penalties.

“By this logic, a trial court could impose a separate penalty (of up to $100 per day) for each paragraph, sentence, or even word in a public record,” Justice Susan Owens wrote. “In fact, the definition of a public record can include individual letters … so by the logic of the majority, a trial judge could choose to impose a separate penalty for each individual letter in a public record.”

Michele Earl-Hubbard, an attorney who represented the newspaper, said that was unlikely, as such a ruling could be found to be an abuse of discretion and thrown out on appeal. She called the majority’s decision “hugely important.”

“This involved a real risk to public health and the judge understood why it was important for the Times to be able to get these documents,” Earl-Hubbard said. “It’s a good message to send not just to this agency but to the all the agencies: The public has a right to get information in a timely matter.”

The gun range sued to block the release of the documents, but King County Superior Court Judge Catherine Shaffer dismissed the case and found that Labor and Industries had violated the records act during five time periods. She calculated the fines for each time period at varying rates, depending on the department’s conduct. The penalties ranged from a penny per page per day the records were withheld all the way up to $5 per page per day for the nine days it took the department to turn over documents in response to one of her orders.

In all, she ordered the department to pay the Times $502,827.40, plus more than $43,000 in legal fees. The Supreme Court upheld both awards, and added that the newspaper would also receive legal fees for having to respond to the department’s appeal.

Labor and Industries spokesman Tim Church said department staff members have done additional public records training in response to the case.

“We’re disappointed with the decision, for sure,” he said. “Public records requests can involve tough decisions and we do our best to get them right.”

Chief Justice Barbara Madsen and Justices Sheryl Gordon McCloud, Mary Yu and Mary Fairhurst signed the majority opinion. Justices Steven Gonzalez, Charles Johnson and Charles Wiggins joined the dissent.


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