 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TURNER HELTON,                                   No. 68016-1-1
                                                 (consolidated with No. 68910#-l) 4    £%
                                                                                        •30
                      Respondent,
                                                 DIVISION ONE
              v.                                                                   «    ^*<3» ...


                                                 UNPUBLISHED OPINION
SEATTLE POLICE DEPARTMENT,

                      Appellant.                 FILED: April 8, 2013


       Grosse, J. — A trial court has considerable discretion under the Public

Records Act, chapter 42.56 RCW, in determining the amount of a per diem

penalty to impose and the amount of attorney fees to award. Here, the trial court

carefully considered the factors relevant to determining the amount of the per

diem penalty, including the fact that the some of the withheld records were not

subject to disclosure at the time of the records request and that some were

subject to disclosure. Also, before awarding attorney fees, the trial court carefully

reviewed Turner Helton's resubmitted fee application to ensure that it was proper

under the governing case law and that it adequately addressed the court's

concerns with the initial fee application.        The court also made its own

adjustments to the amount of fees Helton requested in his resubmitted

application. While the per diem penalty and the award of attorney fees may not

be in amounts we would have imposed, the trial court nevertheless did not abuse

its discretion in imposing a $45 per day penalty and in its award of attorney fees.

We affirm the trial court.
No. 68016-1-1/2


                                      FACTS

      Turner Helton filed a complaint with the Seattle Police Department (SPD)

alleging that in November 2009, SPD officers used unnecessary force in taking

him into protective custody.1      SPD's Office of Professional Accountability
Investigation Section (OPA-IS) investigated Helton's complaint, concluded that it

was unfounded, and closed the investigation.       OPA-IS informed Helton of its

conclusion by letter dated June 2, 2010. The letter listed the evidence OPA-IS

considered in its investigation, which consisted of the incident report and follow-

up records.   The same month, Helton filed an information request with SPD

asking for this evidence pursuant to the Public Records Act (PRA).

       By letter dated July 15, 2010, SPD informed Helton that because his

complaint was determined to be unfounded, disclosure under the PRA was

limited to (1) a redacted two-page Form 2.7 - SPD Investigation Summary

Report and (2) a redaction log identifying 16 records Helton requested that were

withheld from disclosure in their entirety. With regard to the information withheld,

SPD cited the same exemptions for all the information: "Information is essential

to effective Law enforcement and right to privacy."2
       In June 2011, Helton filed a complaint for relief under the PRA.          He

alleged three violations of the PRA: (1) failure to produce the requested records

within a reasonable amount of time; (2) assertion of inapplicable exemptions as a


1 The police arrived at Helton's antiques shop in response to a 911 call from a
person in Salt Lake City who worked for Helton's insurance company. The
person reported that Helton had threatened to kill himself while talking to this
person on the phone about the cost of his prescription drugs.
2 SPD also cited the medical information exemption as a reason for withholding
the Seattle Fire Department medical incident report.
No. 68016-1-1/3


basis for redacting the Investigation Summary Report; and (3) assertion of

inapplicable blanket exemptions to justify the withholding of the remaining 16

records.    Helton also sought the maximum statutory penalty ($100 per diem),

alleging as justification SPD's bad faith violations of the PRA.

       On Helton's motion, the trial court ordered SPD to show cause why it

should not find that it violated the PRA. The first hearing on the order to show

cause, held on August 5, 2011, ended without the court reaching a conclusion.

On August 18, 2011, before the second hearing was held, the Washington

Supreme Court issued its opinion in Bainbridqe Island Police Guild v. Citv of

Puvallup3 in which it held that a police department's investigation reports

concerning an unsubstantiated allegation of sexual misconduct by an officer were

not exempt from disclosure under the PRA. Only the officer's name was held not

subject to disclosure. On August 30, 2011, SPD produced the records Helton

requested with the subject officers' names redacted.

        In September 2011, the trial court held a hearing on Helton's motion for a

PRA penalty and for attorney fees and costs. The trial court determined that a

$45 per diem penalty was appropriate.4 The court entered an order consistent
with its oral ruling.

       With regard to attorney fees, the trial court directed counsel to resubmit

the fee application, this time paying close attention to the guidelines set forth in




3 172 Wn.2d 398, 259 P.3d 190 (2011).
4The trial court's reasons underlying its determination are discussed below.
No. 68016-1-1/4


Mahler v. Szucs.5 Helton resubmitted his application. The court determined that
the second application adequately remedied the deficiencies in the first

application, and the court awarded Helton attorney fees and costs.

      SPD appeals the order imposing the per diem penalty and awarding

Helton attorney fees and costs.

                                   ANALYSIS


Standard of Review

      We review an award of per diem penalties and attorney fees under the

PRA for abuse of discretion.6        An abuse of discretion is a manifestly

unreasonable decision or one based on untenable grounds or untenable

reasons.7 A decision is manifestly unreasonable if the court, despite applying the

correct legal standard, adopts a view no reasonable person would take.8
Per Diem Penalty

      The PRA gives the trial court discretion to award a person who prevails

against an agency in an action seeking a public record "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."9 Determination of a PRA per diem penalty involves two


5 135 Wn.2d 398, 957 P.2d 632 (1998), implied overruling on other grounds
recognized by Matsvuk v. State Farm Fire & Cas. Co.. 173 Wn.2d 643, 272 P.3d
802(2012).
6 Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 458, 229 P.3d 735 (2010).
7 Yousoufian. 168 Wn.2d at 458.
8West v. Thurston County. 168 Wn. App. 162, 187, 275 P.3d 1200 (2012).
9 RCW 42.56.550(4). This provision provides in full:
            Any person who prevails against an agency in any action in
     the courts seeking the right to inspect or copy any public record or
     the right to receive a response to a public record request within a
       reasonable amount of time shall be awarded all costs, including
No. 68016-1-1/5


steps: (1) determining the amount of days the party was denied access to the

public record and (2) determining the appropriate amount of the penalty.10
Although the existence or absence of an agency's bad faith is the principal factor

for consideration, no showing of bad faith is necessary before a penalty may be

imposed on an agency.11 Also, "a good faith reliance on an exemption will not
exonerate an agency from the imposition of a penalty where the agency has

erroneously withheld a public record."12
       In Yousoufian v. Office of Ron Sims, the court set forth guidelines for

determining an appropriate penalty for a PRA violation.13 Mitigating factors that
may decrease the penalty are

       (1) a lack of clarity in the PRA request; (2) the agency's prompt
       response or legitimate follow-up inquiry for clarification; (3) the
       agency's good faith, honest, timely, and strict compliance with all
       PRA procedural requirements and exemptions; (4) proper training
       and supervision of the agency's personnel; (5) the reasonableness
       of any explanation for noncompliance by the agency; (6) the
       helpfulness of the agency to the requestor; and (7) the existence of
       agency systems to track and retrieve public records.[14]
      Aggravating factors that may increase the penalty are

       (1) a delayed response by the agency, especially in circumstances
       making time of the essence; (2) lack of strict compliance by the
       agency with all the PRA procedural requirements and exceptions;


       reasonable attorney fees, incurred in connection with such legal
       action. 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.
10 Yousoufian. 168 Wn.2d at 459. Only the appropriateness of the amount of the
penalty imposed is at issue here.
11 Amren v. Citv of Kalama. 131 Wn.2d 25, 36-38, 929 P.2d 389 (1997).
12 Amren. 131 Wn.2d at 36.
13 168 Wn.2d 444, 459-63, 229 P.3d 735 (2010).
14 Yousoufian. 168 Wn.2d at 467 (footnotes omitted).
No. 68016-1-1/6


      (3) lack of proper training and supervision of the agency's
      personnel; (4) unreasonableness of any explanation for
      noncompliance by the agency; (5) negligent, reckless, wanton, bad
      faith, or intentional noncompliance with the PRA by the agency; (6)
      agency dishonesty; (7) the public importance of the issue to which
      the request is related, where the importance was foreseeable to the
      agency; (8) any actual personal economic loss to the requestor
      resulting from the agency's misconduct, where the loss was
      foreseeable to the agency; and (9) a penalty amount necessary to
      deter future misconduct by the agency considering the size of the
       agency and the facts ofthe case.1 ]
      The Yousoufian factors may overlap, are for guidance only, may not apply

equally or at all in every case, and are not an exclusive list of appropriate

considerations in determining a PRA penalty.16 No one factor should control, nor
should the factors infringe on the trial court's considerable discretion to determine

a PRA penalty.17
       Here, in deciding that a $45 per diem penalty was appropriate, the trial

court carefully considered the Yousoufian mitigating and aggravating factors.

The court found that SPD in good faith complied with the PRA's procedural

requirements, including responding promptly to Helton's request, and that there

was no defect in SPD's training and supervision of its employees.              As to

aggravating factors, the court determined that SPD "did not disclose the matters

that they were required under law to disclose" and gave "too short a shrift" to

Helton's request. The court also determined that SPD gave an unreasonably

narrow and literal interpretation to the basis upon which it could withhold and

withheld documents that were clearly disclosable, such as Helton's own



15 Yousoufian. 168 Wn.2d 467-68 (footnotes omitted).
16 Yousoufian. 168 Wn.2d at 468.
17 Yousoufian. 168 Wn.2d at 468.

                                          6
No. 68016-1-1/7


statement and the Seattle Fire Department medical record. The court specifically

found that SPD did not act in bad faith, but nevertheless found a basis for

imposing a $45 per diem penalty "to tell agencies other than Seattle Police

Department and to tell the public that they can trust that the agencies will

recognize this important duty to administer the public disclosure laws in good

faith."

          SPD argues that the trial court's imposition of a $45 per diem penalty was

an abuse of discretion because its initial decision to withhold the records Helton

requested was based on a reasonable interpretation of the then-current case law

and that once Bainbridqe Island Police Guild was issued, it promptly disclosed

the records that were rendered not exempt from disclosure under that opinion.

And, it argues that the trial court should not have justified the penalty as a

statement to other agencies as to the need for compliance with the PRA. Rather,

it argues Yousoufian allows as an aggravating factor the need to deter future

misconduct by the agency at issue.

          The trial court, in imposing the $45 per diem penalty, acknowledged that

some of the records did not have to be disclosed at the time of Helton's request.

But, the court also determined that SPD gave "too short a shrift" to Helton's

request and read the PRA too narrowly by refusing to disclose records that were

clearly not exempt from disclosure such as Helton's own statement to SPD and
the medical incident report. SPD does not dispute that these records were not

exempt from disclosure. SPD's good faith reliance on a PRA exemption does not
No. 68016-1-1/8


exonerate it from the imposition of a penalty where it erroneously withheld a

public record.18
        Further, because the Yousoufian factors are not an exclusive list of factors

the court should consider, SPD's argument that the court abused its discretion in

imposing the penalty to deter future misconduct by agencies other than SPD,

rather than misconduct by only SPD, is without merit.

        SPD argues that this court's decision in Sargent v. Seattle Police

Department19 shows that the $45 per diem penalty imposed in this case was an

abuse of discretion. In Sargent. SPD challenged the trial court's imposition of the

maximum per diem penalty of $100 for SPD's failure to disclose records relating

to an incident involving an altercation between Sargent and an off-duty SPD

officer. This court agreed that the $100 penalty was an abuse of discretion as

disproportionate to SPD's actions:

        SPD timely responded to Sargent's requests, properly withheld the
        criminal investigative records (and suggested timing for a
        "refresher" request), disclosed the records within two months when
        they were not exempt, properly withheld the disciplinary
        investigation file, and kept Sargent informed of the status of the
        criminal and disciplinary investigations. SPD violated the PRA only
        insofar as it failed to provide Sargent's jail records and failed to
        justify certain exemptions. And SPD's reliance upon a categorical
        exemption for witness identification was hardly an unreasonable
        reading of the case law. Finally, the trial court's finding of bad faith
        is not supported by the evidence, and there is no showing that SPD
        was negligent.[20]




18
     See Amren. 131 Wn.2d at 36.
19l67 Wn. App. 1, 260 P.3d 1006 (2011), review granted. 175 Wn.2d 1001
  167 Wn. App. 1, 260 P.3d
(2012).
  012).
^° 167 Wn. App. at 24-25 (footnote omitted).

                                           8
No. 68016-1-1/9


      Had the trial court here imposed the maximum $100 penalty, then Sargent

would provide reasonable grounds to find no basis for the penalty.        But the

court's penalty was far less than $100 per day. Given the considerable discretion

given to the trial court, and the undisputed fact that SPD improperly withheld

some of the requested documents, we will not disturb the trial court's decision to

impose the $45 per diem penalty.

Attorney Fees

       In addition to a per diem penalty, the PRA provides for an award of

attorney fees to a person who prevails against an agency in an action seeking to

inspect or copy a public record.21 We review an award ofattorney fees under the
PRA for abuse of discretion.22

       The trial court directed Helton to submit a revised fee application

addressing the factors enumerated in Mahler v. Szucs. including the experience
of the attorneys involved in the case, block billing, contemporary records, and
conferencing among counsel. In Mahler, the court directed courts to use the
lodestar method when determining a fee award. Under that method, the court

first determines that counsel expended a reasonable number of hours in securing

a successful recovery; second, the court determines the reasonableness of the
hourly rate charged; and third, the court may, in rare instances, adjust the
lodestar fee upward or downward.23 The court also stated that the lodestar



21 RCW 42.56.550(4).
22 Kitsap County Prosecuting Attorney's Guild v. Kitsap County. 156 Wn. App.
110, 120,231 P.3d 219 (2010).
23 Mahler. 135 Wn.2d at 433-34.
No. 68016-1-1/10


methodology can be supplemented by an analysis of the factors in RPC 1.5(a)

relating to the reasonableness of a fee.24
       Here, the trial court engaged in a lengthy analysis of Helton's revised fee

application and the guidelines set out in Mahler. Additionally, the court issued a

detailed written order awarding Helton fees in the amount of $132,585.50. The

attorney fee award is supported by the declarations Helton submitted along with

his fee application, including a declaration of attorney Shelley M. Hall, attesting to

the reasonableness of counsel's hourly rates and hours billed.          SPD did not

submit evidence to rebut Hall's declaration until its motion for reconsideration.

The trial court properly declined to consider this evidence presented for the first

time on reconsideration.25

       SPD argues that the trial court's award of fees to Helton constitutes an

abuse of discretion because, it alleges, Helton's revised fee application,

submitted at the trial court's direction after the court found Helton's first

application deficient, contained the same deficiencies that the court noted in its

initial fee application. The resubmitted application is not the same as the initial

application, but rather contains a number of downward adjustments in the time


24 Mahler. 135 Wn.2d at 433 n.20. Those factors are (1) the time and labor
required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly; (2) the likelihood, if apparent to the
client, that the acceptance of the particular employment will preclude other
employment by the lawyer; (3) the fee customarily charged in the locality for
similar legal services; (4) the amount involved and the results obtained; (5) the
time limitations imposed by the client or by the circumstances; (6) the nature and
length of the professional relationship with the client; (7) the experience,
reputation, and ability of the lawyer or lawyers performing the services; (8)
whether the fee is fixed or contingent; and (9) the terms of the fee agreement
between the lawyer and the client. RPC 1.5(a).
25 Eugster v. Citv of Spokane. 121 Wn. App. 799, 811, 91 P.3d 117(2004).

                                          10
No. 68016-1-1/11


billed, which addressed the trial court's concerns about billing for interoffice

conferences. Also, the trial court made additional adjustments and deductions to

address matters that arose during the hearing on the second application. The

court's determination that the revised fee application adequately addressed the

court's concerns was not an abuse of discretion.

      SPD also argues that the trial court's attorney fee award was punitive. But

the court specifically acknowledged that an award of attorney fees is not meant

to be punitive.26 The court's order shows that its award was properly based on

the Mahler guidelines.

       SPD also argues that the attorney fee award is an abuse of discretion

because fee awards in other PRA cases have been of a much smaller amount

than the amount awarded here. But, SPD fails to take into account the amount of

work it required Helton to undertake because of its litigation tactics. As the trial

court found:

       The record is clear that SPD chose to dispute the PRA complaint.
       The scope and extent of courtroom hearings and underlying
       briefing may have exceeded the amount of work necessary to
       present a typical PRA case. Plaintiff was required to prepare for
       the testimony of SPD witnesses and to respond to SPD's claimed
       PRA exemptions. The time expended by Plaintiffs counsel has
       been found to be reasonable under the circumstances.




26 The court stated:
              And I agree with that. Attorney's fees are not here to
       penalize. Penalties taking place, they can carry out in the penalty
       that's been provided. We usually have a penalty statute. That's
       where the penalty is. Nobody should be penalized for the
       attorney's fees. There is a determination of liability for reasonable
       attorney's fees. We are here to just talk about the reasonableness,
       correct?


                                        11
No. 68016-1-1/12



        SPD has failed to show that the trial court's award of attorney fees

constitutes an abuse of discretion.27

        Affirmed.




                                                    »^X*V^       \
WE CONCUR:




27
     Helton does not seek an award of attorney fees on appeal.

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