A seven-year-old Public Records Act lawsuit against the city of Langley is likely headed back to the state Court of Appeals.
On Monday, Island County Superior Court Judge Carolyn Cliff denied South Whidbey resident Eric Hood’s motion to reconsider her earlier order for penalties and attorney’s fees. She also rejected the city’s request for sanctions against Hood’s attorney, William Crittenden of Seattle, for filing a “baseless” motion for reconsideration.
Immediately following the hearing, Crittenden said in an email that he and Hood “will be appealing without delay.” They argue that the city should have to pay a larger penalty and more attorney’s fees.
Hood, who has made a career out of public records lawsuits, filed the original complaint pro se in superior court in 2016, arguing that the city violated the law by not fully fulfilling his request for a former mayor’s journals, diaries, notebooks, personal calendars, notebooks and handwritten comments.
A former judge granted the city’s motion for summary judgment in 2017, but Hood appealed. The Appeals Court ruled in his favor on several issues, finding that there were unresolved issues of fact. The case was sent back to superior court.
In the end, Cliff decided in Hood’s favor on one issue. She found that the city had fair notice from court filings in 2017 that Hood did not believe he had narrowed his request for the former mayor’s calendar. At that point, the city had five days to respond to his un-narrowed request, but the city did not do that until 2019.
Cliff ordered the city to pay just $5 for each day the copies of the electronic calendars were withheld. Since it took 1,063 days to fulfill the request, the penalty amounted to $5,315.
Under state law, a judge can consider “Yousoufian factors,” like the clarity of the request and the agency’s good faith, in assessing penalties.
In addition, Cliff ordered the city to pay $30,700 in attorney’s fees, which was about half of what Crittenden had requested. Cliff ruled that the city wasn’t liable for attorney’s fees racked up after the city made a settlement offer of approximately the same amount that Cliff ended up awarding Hood.
In his motion for reconsideration, Crittenden asked the judge to reconsider her analysis and increase the award to $100 a day. He argued that the city acted with dishonesty and that the O’Dea v. city of Tacoma decision, which says a records request included in a legal complaint counts as a request under the Public Records Act, applies retroactively.
Seattle attorney Jessica Goldman, who represents Langley, filed an opposition to the motion for reconsidering and a motion for sanctions against Crittenden for filing the “frivolous” argument, which she argued violated a court rule by rehashing arguments the judge already rejected.
“Such a motion is intended simply to prolong and delay the judicial proceedings further, to increase the burden on the court and to add further to the opposing party’s attorney’s fees,” Goldman wrote.
In rejecting the motion for sanctions, Cliff noted that the case has evolved over the years, with involvement from several different judges and attorneys.
