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PLN wins WA DOC public records case - $541,000 in damages and atty fees

Olympian, Jan. 1, 2007.
PLN wins WA DOC public records case - $541,000 in damages and atty fees - Olympian 2007

Published June 09, 2007

Prisons must pay for delay on records

Brad Shannon

Washington’s prison system must pay $541,155 in fines and legal fees to a prison-issues newspaper that had to wait five years to receive public information about medical personnel who injured inmates.

Judge Anne Hirsch approved the settlement Friday in Thurston County Superior Court.

“I think it is the biggest public-records judgment in the state,” said Seattle lawyer Michele Earl-Hubbard, who negotiated and signed the agreement for Prison Legal News, a Seattle-based publication founded by a former inmate. “The biggest thing is it begins to show agencies that if you do delay and do not turn over records, you will have to pay dollars,” Earl-Hubbard added. “The unfortunate thing to me is, it isn’t their money; it is taxpayers’ money.”

Department of Corrections spokesman Gary Larson disagreed.

“We believe we were acting responsibly and within the law. … Two lower courts agreed with us,” he said.

Larson said he does not know how or from where the agency will find the money to pay the judgment.

It includes $200,000 in penalties to the newspaper for late disclosure of documents and $337,6646 for legal costs to Earl-Hubbard’s firm, Davis Wright Tremaine.

State Auditor Brian Sonntag, who is on the board of the open-government coalition, said he hopes the judgment grabs agencies’ attention, including that of local governments.

“What I hope comes from this is an increased sensitivity to public records and public information being readily made available to the public. This will be a very visible lesson to state agencies and local government that public means public,” Sonntag said. “The bottom line is it gets down to the mindset: Are we going to look for ways to make information available to the public or ways to find exemptions?”

Paul Wright wrote in an e-mail he intends to use the money to buy an office for his paper in Seattle. And he thanked the Davis Wright Tremaine firm for taking on the case without promise of payment during years the outcome was in doubt.

The case grew out of a 2000 request from Prison Legal News, which Wright founded while serving 17 years in prison for a felony murder in Washington. The newspaper reports on prison issues nationwide and circulates about 6,000 papers, Wright said.

Wright filed two records requests that were in dispute. He sought information about DOC employees who worked under restricted medical licenses because of past misconduct or whose care injured patients, including some patients who died in custody.

State prison officials provided more than 1,200 pages of documents in 2001 that had the names of prison workers, patients and witnesses blacked out. The “redacting” of names was necessary to protect the safety of staff, inmates and witnesses, the agency claimed.

After the Supreme Court ordered the documents released in 2005, DOC took 266 days to provide some documents, and 19 were discovered to have been damaged while the case was on appeal. The biggest penalties of $100 per day were paid for the damaged records — which had names blacked out on original copies and were reconstructed by holding them up to light.

Larson and assistant attorney general Pete Berney, who signed the settlement agreement, said much of the delay occurred when the public- records dispute was on appeal from 2002 to 2005. That was after Thurston County Judge Tom McPhee ruled that the agency was right to black out the names of medical personnel, victims and witnesses; an appeals court later agreed.

The Supreme Court reversed the case in April 2005 on a 6-to-3 decision authored by Justice Richard Sanders; Justice Mary Fairhurst wrote the dissent.

Once the Supreme Court ruled, Larson and Berney said the DOC needed time to review the documents again for redactions; they also needed time to let personnel named in the documents have a chance to seek court action, and other staff needed to reconstruct the damaged papers.

“All those are reasons that it took the time that it did from the time of the Supreme Court decision until April 2006,” Larson said. “It wasn’t an attempt to delay the production of these records …”

Wright, who lives in Vermont, said that records eventually showed that the state disciplined 14 medical staffers for treatment of two inmates who died and eight more who had serious injuries. He said the judgment means DOC has now paid his newspaper close to $1.3 million in the past decade for various judgments he has won.

Larson said he could only verify a portion of that, including $412,000 in settlements of bulk-mail disputes involving the newspaper in 2000 and 2005.

Earl-Hubbard has done work for other media companies in the Northwest, including The Olympian, on public records issues. She also is past president of the Washington Coalition for Open Government, which advocates for more disclosure of government records.

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