Among the relative handful of access-favoring interpretations of the California Public Records Act by the California Supreme Court was its 2002 decision in Filarsky v. Superior Court (City of Manhattan Beach), 28 Cal.4th 419, that public agencies, after denying access to a record, may not then sue the requester, in a declaratory judgment action, to get a courts stamp of approval for the denial. If that reaction were permitted, those seeking public records could risk the costs of litigation for just asking, and even fewer would ask than is the case now. Unfortunately for the residents of Washington state, that very situation has just been handed them by their supreme court.
Two key factors in the decision: 1. Washingtons Public Records Act, unlike Californias, expressly allows public agencies to seek judicial declarations as to the lawfulness of their decisions to withhold documents (and in doing so, to name the requester as a defendant); and 2. The statute gives the agencies considerable motivation to get a prompt judicial reading on the issue, since if the requester ever does sue and win, they can be hit with a penalty fine of up to $100 per day for unlawful withholdingwith no showing of bad faith required. Conceivably a requester could seek access to a record, get a denial based on a good faith misreading of the law, wait six months, sue for access, and get an order for disclosure, recovery of its attorney fees, and many thousands more in penalty fines.
Note: In CalAware-sponsored legislation of 2006 and 2007both vetoed for other reasonsthe proposal was for a daily penalty to be imposed only where denial or delay of access was shown to be in deliberate defiance or disregard of the law: in bad faith.
