Paper Chasten

The biggest open-records penalty in state history isn't big enough, a citizen tells the state Supreme Court.

BUSINESSMAN AND part-time documents diver Armen Yousoufian notched a solid public-records victory against the government in 2001, and the government now agrees. When a judge awarded Yousoufian just over $100,000 for King County's "egregious" failure to release public documents on its football stadium deal with billionaire Paul Allen, the judge "nailed it," county attorney Mark Stockdale conceded to the state Supreme Court last week. It was the largest Open Records Act penalty in state history, and Stockdale even drew a comical thank-you from one justice for his effort to "confess the guilt of your client." But, sore winner that he is, challenger Yousoufian is intent on running up the score, and his attorneys told the high court that the record fine is not big enough and the law not clear enough to prevent public agencies from similar random acts of stonewalling and nondisclosure.

"We think the courts need some guidance," attorney Rand Jack told the justices during a session held on the road at the University of Washington School of Law. Jack argued there should be a more standard application than the arbitrary $5 to $100 daily fine that judges can impose for disclosure failures and that Yousoufian deserves more than $1 million in damages. Jack maintained that King County Superior Court Judge Kathleen Learned, now retired, was in error when she based the county's penalty on a mostly per-day basis, rather than per- document, as the statute infers.

LEARNED RULED it took the county more than four years—1,463 days—to fully provide Yousoufian with all the documents he requested in his effort to learn more about the county's dealings with Allen, its plan to implode the Kingdome, and its campaign to build what is now Seahawks Stadium (see "After Further Review," Feb. 12, 2003). Using a combination of logic—multiplying days by the number of some documents—Learned decided the county was 5,090 days late and assessed the minimum $5 daily penalty. Yousoufian, who spent more than $140,000 battling the county and had proposed a $31 million fine, got just $25,440. He received an additional $82,196 for his attorneys.

Yousoufian was a University District businessman (he recently sold his University Plaza hotel) who merely wanted to find out more about the sweetheart public-private deal prior to the 1997 vote on the stadium. But he got the brush-off from county officials and resorted to formally requesting documents under the records law, which compels public agencies to release documents except for those exempted for reasons such as national security and personal privacy. Yousoufian was incensed by the county's delays and denials and went to court. "They picked on the wrong Armenian!" Yousoufian warned. But merely winning the lawsuit wasn't sufficient if the fine let the county off the hook, Yousoufian maintained. His attorneys say the penalty should be at least $1.1 million. "The finding of facts and conclusions of law outline in gruesome detail four years of runaround" by the office of County Executive Gary Locke and his successor, Ron Sims, Jack told the Supreme Court last Thursday, Feb. 19.

WHILE THE COUNTY acknowledges there was "gross negligence" leading to its untimely disclosures, it felt the $5 daily fine was reasonable. Sims' attorney, Stockdale, told the justices that "implicitly, every case is treated as a collection of documents," thus a per-day rather than per-documents penalty is fair.

The justices peppered both sides with questions that gave little indication of their positions. Justice Tom Chambers wondered aloud if "the victim here may be the people of the state." Chief Justice Gerry Alexander drew a laugh from the university crowd when he observed the trial court "said there was no bad faith [by the county], there [just] wasn't good faith. Where are we on this?" Richard Sanders asked Jack what would be wrong "if an act of God prevented them [the government] from coming up with the document, or they lost the key to their safe, [could the court] knock off a few dollars?" Jack said that's equitable. "There should be a sliding scale" dependent on culpability and intent. But the court, which will rule later on Yousoufian's challenge, needs to spell it out. Judge Learned, he said, reached her decision without any kind of rational criteria other than to simply lower the penalty. "We think that's capricious."

WATCHING FROM the back of the crowded law school hearing room, Yousoufian was delighted to see his case not only heard in front of the high bench but used as a teaching tool for law students. Of course, if they gave him the $30 million he originally asked for, Yousoufian said, smiling, that would be a lesson for everyone. "I guarantee," he said, "we'd never see this happen again."

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