NEWS MEDIA UPDATE · WASHINGTON · Freedom of Information · Oct. 5, 2006
City agrees to settlement in parking garage records case
Oct. 5, 2006 · The city of Spokane, Wash., has agreed to pay $299,000 to an online magazine for withholding documents related to a controversial business deal.
The payment is part of the Monday settlement of a lawsuit brought by the publishers of Camas Magazine, who in 2001 sought records of the city’s involvement in the financing of a parking garage.
As part of the settlement, the city also issued a public apology, saying it “deeply regrets” withholding records and doing so was “a violation of that State law.”
The mishandled financing of a downtown parking garage was a highly contentious issue in the community at the beginning of the decade and spawned various lawsuits, including one that led the city to pay nearly $33 million.
Editors at Camas attempted, pursuant to the state’s public disclosure act, to acquire 90 documents about the financing deal. City officials refused to release them, citing attorney-client privilege, said Breean Beggs, a lawyer with The Center for Justice in Spokane who represented the magazine.
The attorney-client privilege protects certain information exchanged between an attorney and client. This privilege does not cover every communication between lawyer and client, however, and Beggs said the city overused the privilege in withholding documents.
“We dissected the attorney-client privilege and applied it quite rigorously,” Beggs said. “Most attorneys have an understanding of attorney-client privilege that differs from what it is.”
One unique aspect to this case is that prior to the settlement, the magazine had already gained access to all of the documents it originally sought in 2001. The documents were released as part of another lawsuit between the city and the financers of the parking garage.
In many states and in federal cases involving the federal Freedom of Information Act, the acquisition of the disputed documents would lead a court to dismiss the magazine’s case as “moot.”
Last year, however, the magazine won a ruling from the Washington Supreme Court that said even when a requester has acquired the information it asked the government for, a lawsuit may proceed to determine if the requester is entitled to any damages for the delay.
“Subsequent events do not affect the wrongfulness of the agency’s initial action to withhold the records if the records were wrongfully withheld at that time,” the state Supreme Court wrote.
Therefore, had the city and the magazine not settled, there were two issues to be determined at trial: Were the documents improperly withheld, and if they were, how much did the city owe in penalties?
The trial never happened. But the city’s unqualified apology clears up the answer to the question of whether the documents were improperly withheld.
The possibility that the city would have to pay an even larger amount in fines may have spurred the settlement.
Under state law, fines are assessed for every day a document is withheld, and it is up to a trial court to determine whether a penalty ranging from $5 to $100 should be assessed on a per-request or per-document basis. Thus, had the city lost at trial, it could have been liable for up to $100 per day for each of the 90 documents it had withheld for nearly five years.
In the end, the $299,000 settlement is divided between $147,000 in attorney fees and $152,000 in penalties, an amount Breggs called the largest settlement in the state in a public records case.
(Connor v. Spokane; Media Counsel: Breean Beggs, The Center for Justice, Spokane, Wash.) — NW