1 Hon.

Ken Schubert
FILED
December 13, 10:00 AM
2020 JAN 17 04:16 PM
2 KING COUNTY With oral argument
SUPERIOR COURT CLERK
3 E-FILED
CASE #: 18-2-57598-2 SEA
4

7 SUPERIOR COURT OF WASHING TON

9 JIMI HAMILTON, No. 18-2-57598-2 SEA

15

16 I. INTRODUCTION

17 This matter came before the Court on plaintiff Hamilton’s Motion for PRA Penalties

18 and Attorney’s Fees. The Court considered the pleadings in this case as well as the following:

19 1. Hamilton’s Motion for PRA Penalties and Attorney’s Fees;

20 2. Declaration of William John Crittenden In Support Of Motion for PRA Penalties

21 and Attorney’s Fees;

22 3. Declaration of William John Crittenden in Support of Motion for Partial

23 Summary Judgment (filed June 21, 2019);

24 4. Declaration of Geoffrey A. Enns (filed May 31, 2019).

25

26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 1 of 16 S EATTLE, WASHINGTON 98104
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 1 5. Defendant’s Response to Plaintiff’s Motion for PRA Penalties and Attorney’s

2 Fees;

3 6. Declaration of Patricia Pendry;

4 7. Declaration of Jessica Payne;

5 8. Reply on Motion for PRA Penalties and Attorney’s Fees;

6 9. Supplemental Declaration of William John Crittenden In Support Of Motion for

7 PRA Penalties and Attorney’s Fees

8 Having considered the above pleadings and heard the arguments of counsel, the Court

9 enters the following findings of fact, conclusions of law, order and judgment.

10 II. FINDINGS OF FACT

11 A. RCW 70.48.100(2)(g)

12 1. RCW 70.48.100(2)(g) (former RCW 70.48.100(2)(d)), which provides that

13 inmate records may be produced “upon the written permission of the person,” was enacted in

14 1977 as part of the City and County Jails Act. Laws of 1977, 1st Ex. Sess., ch. 316, § 10;

15 Chap. 70.48 RCW.

16 2. Since its enactment in 1977, the City and County Jails Act (Chap. 70.48 RCW)

17 no legislation, court opinion or other authority cited to or found by this Court has ever referred

18 to that statute as the “Jail Records Act.”

19 3. Apart from the requirement of “written permission of the person,” RCW

20 70.48.100(2)(g) has never included any procedural provisions whatsoever.

21 4. No case cited by either party or found by the Court supports the County’s

22 argument that RCW 70.48.100(2)(g) takes inmate records out of the procedural provisions of

23 the PRA. The cases that address RCW 70.48.100(2)(g) either assume or explicitly state that this

24 statute is merely an “other statute” exemption incorporated into the PRA. The October 31, 2016

25

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FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 2 of 16 S EATTLE, WASHINGTON 98104
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 1 Sunshine Laws 2016 published by the Attorney General indicates that RCW 70.48.100(2)(g) is

2 just an “other statute” exemption under the PRA.

3 5. As early as April 2003 Snohomish County (the “County”) started requiring

4 persons requesting inmate records to complete a special form titled an “Authorization for Use

5 and Disclosure of Jail/Health Records Information.” This form did not comply with the

6 requirements for making a PRA request because it purported to be an “authorization” form and

7 did not contain any references to public records or the PRA.

8 6. Since 2014 the County has paid several settlements in PRA cases involving the

9 County jail. These settlements allow for an inference that a desire to reduce its liability under

10 the PRA motivated the County.

11 7. A memorandum from Patricia Pendry, Records and Data Management

12 Supervisor for the Sheriff’s Office dated March 12, 2015, shows (i) the County knew that RCW

13 70.48.100 is part of a statute actually called the “City and County Jails Act,” (ii) the County

14 knew that this statute contains no procedural provisions in general let alone provisions for the

15 request, review, or production of documents in particular, (iii) the County knew that its legal

16 theory was not supported by existing law, (iv) the County knew that it did not need inmates to

17 sign a release to obtain their own records, and (v) the County sought to respond to requests for

18 inmate records within the time frames required by the PRA in an effort to avoid “test[ing] the

19 waters” with the County’s legal theory that inmate records were not governed by the PRA. The

20 County’s proposed findings (12/3/19) at 8-9 assert, without supporting testimony, that

21 “test[ing] the waters” referred only to the jail register under RCW 70.48.100(1). Assuming,

22 arguendo, that the County’s interpretation of the memorandum is correct, the fact remains that

23 the County actively sought to avoid a determination of whether another subsection of the same

24 statute at issue in this case (RCW 70.48.100) was or was not governed by the PRA. That fact

25 supports a finding of bad faith.

26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 3 of 16 S EATTLE, WASHINGTON 98104
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 1 8. A newer version of the County’s “Authorization for Use and Disclosure of

2 Inmate Records Information” form dated August 9, 2015, was substantially the same as the

3 2003 form. The newer form does not comply with the requirements for making a PRA request

4 as that form purports to be an “authorization” form with no references to the PRA.

5 9. A yet newer version of the County’s “Authorization for Use and Disclosure of

6 Inmate Records Information” form dated February 23, 2016, was substantially the same as the

7 2003 form. That form also does not comply with the requirements for making a PRA request as

8 that form purports to be an “authorization” form with no references to the PRA.

9 10. On June 10, 2016 the County, represented by deputy prosecutor Sara Di

10 Vitorrio, filed a motion for summary judgment in another PRA case: Roberts v. Snohomish

11 County, 15-2-26340-4 SEA. In that motion, the County explicitly argued, among other things,

12 that a person who used the County’s “Authorization for Use and Disclosure of Jail/Health

13 Records Information” form to request records had not made a PRA request at all. That

14 argument supports finding that the County knew that its special “authorization” form did not

15 comply with the PRA and that the County intended to rely on requestors’ use of that form to

16 argue, in response to any litigation, that the requestor had not made a PRA request. The

17 County’s Response at 3 asserts that:

18 It was not the use of the form that determined which statute applied – the
County simply argued what it argues here: requests for confidential inmate
19 records are governed by RCW 70.48.100 and not the PRA. Id. at 6-7.

20 The County’s motion in Roberts, which argued that inmate records were not governed by the
21 PRA and, in the alternative, that the requestor who used the County’s authorization form had
22 not made a PRA request at all, did not support that statement.
23 11. At some time prior to January 2017, the County set up a separate website for
24 requesting inmate records. This website inaccurately asserted that inmate records were not
25 governed by the PRA, instructed requestors to fill out a special “authorization” form that did
26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 4 of 16 S EATTLE, WASHINGTON 98104
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 1 not comply with the PRA, and directed requestors to send that form to a different fax number,

2 email address or mailing address from those used to request public records.

3 12. Deputy prosecutor Di Vittorio conducted at least two PRA training sessions in

4 2018 in which she inaccurately referred to RCW 70.48.100(2)(g) as the “Jail Records Act” and

5 juxtaposed that non-existent statute with the PRA.

6 B. Procedural History

7 13. Hamilton made seven PRA requests to the County for his own inmate records

8 between December 25, 2017 and April 24, 2018. Hamilton was a “person who was serving a

9 criminal sentence” for purposes of RCW 42.56.565(1) at the time each request was made.

10 14. Between January 7, 2018 and May 2, 2018, the County responded to each of

11 Hamilton’s PRA requests by asserting (i) that the PRA did not govern the requested records

12 rather the so-called “Jail Records Act” did, and (ii) that Hamilton was required to complete the

13 County’s special “authorization” form to obtain the records.

14 15. The County refused to produce requested records unless and until Hamilton

15 filled out the County’s special “authorization” form.

16 16. The County did not need Hamilton to fill out the County’s special form in order

17 to confirm his identity or to comply with RCW 70.48.100(2)(g). Demanding that Hamilton fill

18 out the “authorization” form would allow the County to argue that Hamilton had not made a

19 PRA request at all in response to any lawsuit under the PRA.

20 17. Hamilton had no obligation to follow the County’s special procedures or

21 complete the County’s invalid, misleading “authorization” form, and Hamilton’s permissible

22 refusal to do so did not contribute to or mitigate any of the County’s PRA violations or liability.

23 18. On or about May 31, 2018, Hamilton filed a pro se lawsuit in King County

24 Superior Court against Snohomish County for violations of the PRA. Hamilton v. Snohomish

25 County, No. 18-2-14262-8 SEA.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 5 of 16 S EATTLE, WASHINGTON 98104
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 1 19. On or about October 8, 2018, the County filed a motion to dismiss Hamilton’s

2 pro se case, arguing (i) that inmate records were not governed by the PRA but by a so-called

3 “Jail Records Act,” and (ii) that Hamilton’s request was properly denied because Hamilton

4 refused to complete the County’s special form.

5 18. Hamilton retained an attorney, William John Crittenden, who appeared in the

6 case on November 1, 2018 and filed a response to the County’s motion and a cross-motion for

7 partial summary judgment for violations of the PRA.

8 19. Hamilton’s cross-motion put the County on notice that (i) the County’s

9 references to RCW 70.48.100(2)(g) as the “Jail Records Act” were false and misleading, (ii)

10 unlike Chap. 13.50 RCW, which creates special statutory processes for accessing juvenile

11 justice records, RCW 70.48.100(2)(g) contained no procedural provisions whatsoever, (iii) the

12 County’s argument would strip away all of the procedural provisions of the PRA leaving

13 nothing to replace them, and (iv) that Hamilton’s own inmate records were not exempt from

14 disclosure to Hamilton.

15 20. The County refused to reschedule its motion so that Hamilton’s cross-motion

16 could be heard at the same time as the County’s motion, despite the lack of prejudice to the

17 County. The County maintained this position even after Hamilton’s attorney warned the

18 County that he would take a voluntary dismissal and start a new lawsuit if the County did not

19 agree to reschedule the motions.

20 21. Hamilton’s counsel moved for voluntary dismissal on November 7, 2018. The

21 Court entered an order dismissing the case on November 16, 2018.

22 22. Hamilton commenced the present case on November 7, 2018 by service on the

23 County.

24 23. On November 8, 2018, Hamilton’s counsel sent a letter to deputy prosecutor Di

25 Vittorio as well as the elected prosecutor, Mark Roe, explaining why the present case was filed

26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 6 of 16 S EATTLE, WASHINGTON 98104
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 1 and demanded that the County rescind all County procedures that erroneously suggested that

2 there was any “Jail Records Act” and/or that requests for inmate records were not governed by

3 the PRA.

4 24. Hamilton filed the present case in this Court on December 19, 2018. At that time

5 the County’s website for obtaining inmate records referenced the non-existent “Jail Records

6 Act”.

7 25. On December 26, 2018, Hamilton’s counsel sent another demand letter to

8 Executive Dave Somers, all five members of the County Council, the prosecutor and the

9 sheriff’s office. Di Vittorio, Cummings, the council’s staff, prosecutors’ staff and sheriff’s

10 office staff received that letter.

11 26. On May 31, 2019 the County filed its Defendant’s Motion for Summary

12 Judgment (County’s Motion), making similar arguments as those contained in the County’s

13 October 2018 motion to dismiss, except:

14 o the County’s Motion added an argument that RCW 70.48.100 was “analogous” to the

15 Uniform Health Care Information Act (UHCIA), Chap. 70.02 RCW; and

16 o the County’s Motion added an argument that the County’s “authorization” form was

17 “similar” to the form used in Sargent v. Seattle Police Department, 167 Wn. App. 1, 20

18 n.44, 260 P.3d 1006 (2011), overruled on other grounds, 179 Wn.2d 376 (2013).

19 27. The County’s Motion asserted that the County had made only “colloquial”

20 references to the “Jail Records Act,” but the evidence shows that the County intentionally used

21 that inaccurate title for the statute for many years on its website, in correspondence and in

22 training materials. The County produced no testimony or other evidence to contradict the

23 extrinsic evidence that the County’s used references to the “Jail Records Act” to mislead

24 requestors into believing that the Legislature had enacted an entire “Act” that governed the

25 requests for and production of inmate records.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 7 of 16 S EATTLE, WASHINGTON 98104
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 1 28. The County’s Motion asserted that Hamilton had failed to follow a “statutory

2 process” even though (i) RCW 70.48.100(2)(g) contains no procedural provisions, and (ii) the

3 process Hamilton refused to follow was created by the County without any basis in Washington

4 law.

5 29. The County’s Motion did not address Hamilton’s salient point, set forth in his

6 November 2018 cross-motion, that the County’s argument would strip away all of the

7 procedural provisions of the PRA leaving nothing to replace them.

8 30. On June 21, 2019, Hamilton filed his Motion for Partial Summary Judgment.

9 Hamilton’s motion, which argued that:

10 o unlike RCW 70.48.100(2)(g), the UHCIA contains numerous procedural provisions that

11 govern requests for health care information;

12 o the County’s “authorization” form does not comply with the requirements for making a

13 PRA request and directs requestors to send the form to a different fax number, email

14 address or mailing address from those used to request public records;

15 o the County’s website and “authorization” form were designed to force requestors to

16 acknowledge that they had not made a PRA request at all; and

17 o the County had relied on its special “authorization” form to argue, in the Roberts case,

18 that the requestor had not made a PRA request at all.

19 31. By June 17, 2019, the County changed its website by removing the erroneous

20 references to the “Jail Records Act.” But the website still indicated that inmate records were

21 not governed by the PRA and directed requestors to use the County’s special “authorization”

22 form.

23 32. The County filed its response/reply on July 12, 2019. The County focused on

24 arguing that the County had not acted in bad faith. The County’s reply failed to respond to

25 Hamilton’s arguments that:

26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 8 of 16 S EATTLE, WASHINGTON 98104
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 1 o there is no “statutory process” created by RCW 70.48.100(2)(g);

2 o the County’s argument would strip away all of the procedural protections of the PRA

3 for inmate records, leaving nothing in their place;

4 o RCW 70.48.100(2)(g) is not “analogous” to either Chapter 13.50 RCW (juvenile

5 records) or the UHCIA because those statutes have numerous separate procedural

6 provisions; and

7 o the County’s “authorization” form was not similar to the form in Sargent, and did not

8 comply with the requirements for making a PRA request.

9 33. Hamilton filed his reply on July 26, 2019.

10 34. The Court heard the parties’ motions for summary judgment on August 2, 2019,

11 and entered its Order Denying County’s Motion for Summary Judgment; Order Granting

12 Partial Summary Judgment (Order) at that time. This Court’s order stated, in relevant part:

13 RCW 70.48.100 is an “other statute” exemption under the Public Records Act,
Chap. 42.56 RCW (PRA). The County has violated the PRA by requiring
14 plaintiff to make his request for confidential inmate records pursuant to RCW
70.48.100 and by refusing to produce those records pursuant to RCW 42.56 et
15 seq. RCW 70.48.100 does not provide a statutory procedure for making the
records request; the PRA does. Further, RCW 70.48.100 does not apply when,
16 as here, the subject of the records seeks their disclosure.
17 35. By August 13, 2019, the County revised its website to recognize that inmate

18 records may be requested under the PRA.

19 36. The County responded to Hamilton’s PRA requests by producing the requested

20 records on August 29, 2019. The County’s transmittal letter cited Hamilton for his “refusal” to

21 complete the County’s invalid “authorization” form.

22 C. Bad Faith

23 37. Washington law does not support the County’s “Jail Records Act” argument.

24 There is no evidence or authority to support the County’s legal theory or suggest that its use of

25 the invented title of “Jail Records Act” came from any source outside of the County.

26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 9 of 16 S EATTLE, WASHINGTON 98104
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 1 38. The County acted in bad faith by seeking to convince inmates, requestors and

2 their attorneys that the Legislature had enacted an entire “Jail Records Act” that governed

3 access to inmate records when in fact the applicable exemption was just one sub-subsection of

4 RCW 70.48.100, which contains no procedural provisions. The County’s assertion, in its

5 Motion for Summary Judgment at 2 note 2, that the County only “colloquially” referred to the

6 statute by that name was inaccurate and consistent with the County’s bad faith.

7 39. The County acted in bad faith by arguing that Hamilton failed to follow a

8 “statutory process” when there was no such process. The 2015 Pendry memorandum shows that

9 the County knew that no particular authorization form was required by state law and that the

10 County did not bother with such forms for its own inmates.

11 40. The County acted in bad faith by arguing that RCW 70.48.100(2)(g) was

12 analogous to Chap 13.50 RCW and the UHCIA even though, as Hamilton repeatedly pointed

13 out, those statutes have numerous procedural provisions while RCW 70.48.100(2)(g) contains

14 no procedural provisions whatsoever.

15 41. The County acted in bad faith by attempting to remove all the procedural

16 protections of the PRA from inmate records to limit the PRA liability imposed on the County

17 by the voters and the legislature.

18 42. The County acted in bad faith for purposes of RCW 42.56.565(1) by asserting in

19 response to Hamilton’s PRA requests that inmate records were not governed by the PRA, by

20 continuing to take that position during this litigation, and by refusing to produce the requested

21 records based on that meritless legal theory.

22 43. The County acted in bad faith by creating a special website and “authorization”

23 form that did not comply with the PRA, which the County designed to enable the County to

24 argue that no PRA request had been made.

25

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FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 10 of 16 S EATTLE, WASHINGTON 98104
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 1 44. There is no evidence or explanation from the County to show that the County

2 actually needed Hamilton to complete the “authorization” form in order to confirm his identity.

3 The 2015 Pendry memorandum shows that the County knew that it did not need such

4 authorization or releases. The County did not in fact need Hamilton’s signature on the

5 “authorization” form.

6 45. The County acted in bad faith by attempting to blame Hamilton for his refusal to

7 use the County’s invalid “authorization” form when the County knew that it did not need the

8 form and that the form was intended to establish that no PRA request had been made.

9 46. The County acted in bad faith for purposes of RCW 42.56.565(1) by refusing to

10 produce the requested records unless and until Hamilton signed the County’s “authorization”

11 form.

12 D. Number of Penalty Days

13 47. To accommodate his counsel’s schedule, Hamilton agreed to waive PRA

14 penalties for the period from February 8, 2019, to August 2, 2019.

15 48. The County responded to different requests in different amounts of time and

16 with different numbers of pages of records. The parties agree, that if the Court imposes a

17 penalty based on requests, pages and days withheld, then an average figure of 8.71 pages per

18 request should be used, and that 8.71 average pages per request times seven (7) requests times

19 126 days results in a figure of 7682 page-days. Hamilton argues that the Court should impose a

20 penalty for each of 7682 page days. The County does not agree to such a penalty period; the

21 County only agrees with the use of averaging (which was suggested by the County) and the

22 correctness of these calculations.

23 E. Penalty Amount

24 49. Snohomish County is the third-largest county in Washington, with a population

25 of more than 800,000 people.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
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 1 50. Snohomish County’s budget for 2018 is over $995,000,000.

2 51. The County admits that between 128 and 361 requestors have been subjected to

3 the County’s invalid “Jail Records Act” procedures so far.

4 52. The seven (7) mitigating factors set forth in Yousoufian v. Ron Sims, 168 Wn.2d

5 444, 466–68, 229 P.3d 735 (2010) (Yousoufian V) are lacking in this case. The first Yousoufian

6 mitigating factor is inapplicable as Hamilton’s PRA requests were clear.

7 53. The second Yousoufian mitigating factor, the agency’s prompt response and

8 legitimate follow-up inquiry for clarification, is lacking. The County responses were not

9 legitimate, but were designed to mislead requestors into believing that they could not use the

10 PRA to request inmate records. While the County responded in five days (as if a PRA request

11 had been received), it did so, not out of an intent to be helpful, but due to a desire to avoid

12 testing the County’s legal theory in Court.

13 54. The third Yousoufian mitigating factor, the agency’s good faith, honest, timely, and

14 strict compliance with all PRA procedural requirements and exceptions, is lacking. The County

15 intentionally failed to comply with the PRA. Far from strictly complying with the PRA’s

16 procedural requirements, the County attempted in bad faith to strip away the PRA’s procedural

17 provisions. The County’s repeated refusal to acknowledge that fact evinces a willful disregard

18 for the rights of PRA requestors.

19 55. The fourth Yousoufian mitigating factor, proper training and supervision of the

20 agency’s personnel, is lacking. While the evidence suggests that the County’s non-lawyer staff

21 may have trusted their attorneys and attempted in good faith to fulfill the County’s obligations

22 under the PRA, the County’s procedures and training on inmate records were intended to

23 circumvent the PRA.

24 56. The fifth Yousoufian mitigating factor, the reasonableness of the agency’s

25 explanation for noncompliance, is lacking. The County repeatedly inaccurately characterized

26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
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 1 this Court about its conduct, starting with the statements in its Motion for Summary Judgment

2 that Hamilton had refused to follow a “statutory process”, when that process does not actually

3 exist. Further, the County never adequately explained (i) why it referred to RCW 70.48.100 as

4 the “Jail Records Act,” (ii) why its “authorization” form did not comply with the PRA, or (iii)

5 why the County has repeatedly ignored the salient point that RCW 70.48.100 contains no

6 procedural provisions or protections.

7 57. The sixth Yousoufian mitigating, helpfulness to the requestor, factor, is lacking.

8 The County’s improper responses to Hamilton’s requests, its misleading website, and its invalid

9 “authorization” form delayed the County’s response to Hamilton’s requests and sought to strip

10 away his rights under the PRA. The County was consistently unhelpful to Hamilton.

11 58. The seventh Yousoufian mitigating factor, the existence of agency systems to

12 track and retrieve public records, is irrelevant in this case. While the County may have such a

13 system in place, the County sought to remove inmate records from the protections of the PRA

14 and did not treat inmate records as PRA requests at all.

15 59. Apart from economic loss, which Hamilton does not claim, all of the Yousoufian

16 aggravating factors are present.

17 60. Aggravating Factor 1: The County delayed the release of Hamilton’s records in an

18 attempt to force him to fill out the invalid “authorization” form.

19 61. Aggravating Factor 2: Far from strictly complying with all PRA procedural

20 requirements, the County intentionally violated the PRA by attempting to strip away all of

21 those procedural requirements.

22 62. Aggravating Factor 3: The County’s training or supervision with respect to inmate

23 records and RCW 70.48.100(2)(g) violated the PRA rather than complied with it.

24 63. Aggravating Factor 4: There is no reasonable explanation for the County’s actions.

25 See finding 56.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
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 1 64. Aggravating Factor 5: The County’s actions were in bad faith and intentional

2 noncompliance with the PRA.

3 65. Aggravating Factor 6: As set forth above, the County was repeatedly and

4 intentionally dishonest in its responses to Hamilton and its arguments in this Court.

5 66. Aggravating Factor 7: The County clearly foresaw the public importance of access

6 to inmate records, as shown by the County’s production of “Jail Records Act” training

7 materials and the large number of requests for inmate records. The County admits that between

8 128 and 361 requestors have been subjected to the County’s invalid “Jail Records Act”

9 procedures so far.

10 67. Aggravating Factor 8: Hamilton does not claim economic loss.

11 68. Aggravating Factor 9: Snohomish County is a very large County whose actions

12 amounted to an intentional, systematic violation of the PRA that affected a very large number

13 of requestors.

14 69. In light of the County’s bad faith and the need to impose an adequate penalty on

15 such a large agency the Court exercises its discretion to impose a daily penalty of $7 per day on

16 the County for each of Hamilton’s seven (7) PRA requests for a total penalty of $55.034.

17 F. Attorney’s Fees and Costs

18 70. Hamilton was represented by his attorney, William John Crittenden, pursuant to

19 a contingent fee agreement based on an hourly rate of $450 per hour. No other attorneys

20 performed billable work in this matter.

21 71. Based on the evidence provided by Hamilton the Court finds that an hourly rate

22 of $450 per hour is reasonable for an attorney with Mr. Crittenden’s substantial and specialized

23 experience with the PRA.

24

25

26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 14 of 16 S EATTLE, WASHINGTON 98104
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 1 72. In determining that Mr. Crittenden’s hourly rate is reasonable the Court

2 considered the financial risks entailed in representing a client on a contingent fee, and the rates

3 charged by other attorneys in non-contingent litigation, including PRA litigation.

4 73. The Court has reviewed the attorney billing documentation provided by

5 Hamilton and finds that this documentation is sufficiently detailed for an award of attorney fees

6 under the lodestar method. The County has not argued otherwise.

7 74. Hamilton reasonably incurred 117.1 hours of attorney time in this case through

8 November 18, 2019 (after deducting 1.4 hours to which the County objects).

9 75. Since November 8, 2019 (the date of Hamilton’s invoice and motion),

10 Hamilton’s attorney reasonably incurred another 6.9 hours of attorney time to prepare

11 Hamilton’s reply and to attend the hearing on the motion for attorney’s fees and penalties.

12 61. Hamilton reasonably incurred a total of 124 hours of attorney time in prevailing

13 on the issue(s) of whether the County violated the PRA.

14 62. Hamilton incurred $360.45 in recoverable costs.

15 III. CONCLUSIONS OF LAW

16 1. This Court intends for any finding of fact in this order that is actually a

17 conclusion of law to be regarded as such and vice versa.

18 2. The Court incorporates by reference its Order dated August 2, 2019.

19 3. The County violated the PRA in bad faith for purposes of RCW 42.56.565(1),

20 and is liable for penalties under RCW 42.56.565(1).

21 4. Pursuant to RCW 42.56.565(1) the Court hereby imposes a penalty of $7 per

22 day for each of 7862 days, for a total penalty of $55.034.

23 5. The Court employs the lodestar method to determine the reasonable attorney’s

24 fees to be awarded. Under the lodestar method the Court segregates and does not award fees

25

26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 15 of 16 S EATTLE, WASHINGTON 98104
206.477.1567
 1 for unproductive or duplicative time. Pursuant to RCW 42.56.550(4) Hamilton is entitled to

2 reasonable attorney’s fees on those issues on which Hamilton prevailed.

3 6. Hamilton prevailed on all issues in this case, and is entitle to an award of all

4 attorney’s fees reasonably incurred pursuant to RCW 42.56.550(4).

5 7. Hamilton is also entitled to an award of reasonable attorney’s fees incurred in

6 preparing Hamilton’s motion for penalties, attorney’s fees and costs.

7 8. Hamilton reasonably incurred a total of 124 hours of attorney time in (i)

8 prevailing on the issue(s) of whether the County violated the PRA, and (ii) preparing

9 Hamilton’s motion penalties and attorney’s fees, and supporting documentation.

10 IV. ORDER AND JUDGMENT

11 Based on the Findings and Conclusions set forth above, it is hereby ORDERED THAT

12 Hamilton’s motion is GRANTED.

13 Pursuant to RCW 42.56.550(4) and RCW 42.56.565(1) plaintiff Hamilton is awarded

14 and shall have judgment against defendant Snohomish County for $55,034 in penalties.

15 Pursuant to RCW 42.56.550(4) plaintiff Hamilton is awarded and shall have judgment

16 against defendant Snohomish County for reasonable attorney’s fees in the amount of $55,800

17 and costs in the amount of $360.45.

18 This Court shall enter a Judgment reflecting the amounts awarded herein.

19 DATED this 17th day of January, 2020.

20 E-signature on last page.

22

23

24

25

26
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER J UDGE KEN SCHUBERT
KING COUNTY SUPERIOR COURT
AWARDING ATTORNEY FEES AND PRA PENALTIES, 516 3RD AVE, C-203
AND JUDGMENT - Page 16 of 16 S EATTLE, WASHINGTON 98104
206.477.1567
 18-2-57598-2
HAMILTON VS SNOHOMISH COUNTY OF

" ORDER FINDINGS AND CONCLUSIONS

Ken Schubert
" 1/17/2020 4:16:34 PM

/Commissioner: Ken Schubert

2 3 2 2 4 / 5)!
$ 0 2 20DA9CAD30E9A356B2B090778A254A4188865BEC
$ $$ 4 11/13/2018 11:21:11 AM
$ 6 11/13/2023 11:21:11 AM
$ , C=US, [email protected], OU=KCDJA,
O=KCDJA, CN="Ken Schubert:
EPj/VAvS5hGqrSf3AFk6yQ=="

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