Turner Helton, Respondent V. Seattle Police Department, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
TURNER HELTON,
Respondent,
v.
SEATTLE POLICE DEPARTMENT,
Appellant.
No. 68016-1-1
(consolidated with No. 68910-0-1)
ORDER DENYING MOTION
FOR RECONSIDERATION AND
AMENDING OPINION
The respondent, Turner Helton, has filed a motion for reconsideration herein.
The court has taken the matter under consideration and has determined that the motion
for reconsideration 	should 	be denied, 	and that the 	opinion 	of the court 	should 	be
amended.
Now, therefore, it is hereby
ORDERED that the motion for reconsideration is denied; and, it is further
ORDERED that the opinion of the court in the above-entitled cause filed April 8,
2013, be amended to read as follows:
DELETE footnote 27 on page 12, which reads:
27 Helton does not seek an award of attorney fees on appeal.
REPLACE with the following:
27 Although Helton requested attorney fees and costs on appeal, his request was
improper in that he did not devote a separate section of his brief to that request.
See Wilson Court v. Tonv Maroni's. Inc., 134 Wn.2d 692, 710 n.4, 952 P.2d 590
(1998).
Done this 23"' 	day of 	Aff\ I 	2013.
FOR THE COURT:
U3V^C 1°. --ar
'<* 	7^

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TURNER HELTON,
Respondent,
v.
SEATTLE POLICE DEPARTMENT,
Appellant.
No. 68016-1-1 	9
(consolidated with No. 68910^-1)%,^,
DIVISION ONE 	"% 	g?^
UNPUBLISHED OPINION 	<* 	ligp
FILED: April 8, 2013 	'l~. 	%^
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.
5 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 Bainbridae 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
notexempt 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 bv 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.1141
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).
12Amren, 131 Wn.2dat36.
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 of the case.[151
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 Bainbridae 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.1201
18 See Amren. 131 Wn.2d at 36. 	oj
19 167 Wn. App. 	1, 260 P.3d 1006 (2011), review granted. 175 Wn.2d 1001
(2012).
20167 Wn. App. at 24-25 (footnote omitted).

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 of attorney 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 Countv 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.
9

No. 68016-1-1/10
methodology can be supplemented by an analysis of the factors in RPC 1.5(a)
relating to the reasonableness ofa 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 Euaster 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.
\I5W^ 	^
WE CONCUR:
27 Helton does not seek an award of attorney fees on appeal.
12