Background
In April 2016, Terry Cousins sent the Department of Corrections a preservation letter seeking documents surrounding the confinement and death of her sister, Renee Field. In July 2016, Cousins separately made a Public Records Act request for any and all records regarding Field from January 1, 2014, to the present. DOC produced seven installments between November 2016 and January 2019, then informed Cousins that it had provided all responsive records.
Cousins promptly identified records she believed were missing, but personnel changes and errors within DOC stalled the response. DOC did not produce an eighth installment until October 2020 and completed production with a seventeenth installment in August 2021. After the Washington Supreme Court reversed an earlier limitations-based dismissal, the trial court found a 623-day unreasonable delay, counted 434 records as delayed, and awarded $1,081,528 in penalties plus $199,482.50 in attorney fees and $8,165.79 in costs.
The Court’s Holding
The Court of Appeals affirmed that DOC violated the PRA. It held that an unreasonable delay may ripen into a constructive denial of the opportunity to inspect or copy records, and that an objective observer would regard the undisputed 623-day gap between the seventh and eighth installments as such a denial.
The court nevertheless held that the trial court improperly based its penalty on all 434 later-produced records. Duplicates of records produced timely and records outside the request’s scope could not support PRA penalties because penalizing overproduction would encourage agencies to err on the side of nondisclosure. The undisputed evidence showed that only 69 records were both nonduplicative and responsive. The court therefore vacated the penalty and attorney-fee-and-cost awards and remanded to the same judge for new determinations using 69 records and 623 days.
Cousins remained entitled to reasonable appellate fees as a prevailing PRA plaintiff, but the trial court may award no more than 50 percent of those fees, depending on the value of the information in the 69 qualifying records.
Key Takeaways
- An agency’s unreasonable delay in producing public records can constitute a constructive denial under the PRA.
- PRA penalties may not be calculated using timely produced duplicates or records that were not responsive to the request.
- On remand, the trial court must reassess the penalty and fee awards based on 69 qualifying records, while retaining the affirmed 623-day delay period.
Why It Matters
The decision preserves meaningful consequences for extreme production delays while limiting record-based penalties to documents the agency actually withheld beyond a reasonable time. It also protects agencies from being penalized for producing extra or duplicate material, which the court reasoned could otherwise discourage broad disclosure.
The ruling further underscores that PRA fee awards may reflect both the requester’s degree of success and the practical value of the records obtained, even when the requester establishes a statutory violation.