# Lindberg v. Kitsap County

> Washington Supreme Court · November 26, 1997 · 133 Wash. 2d 729

URL: https://www.frixlaw.com/law-library/cases/4711359

## Case

- **Full name:** Richard E. Lindberg v. Kitsap County
- **Court:** Washington Supreme Court
- **Decided:** November 26, 1997
- **Citations:** 133 Wash. 2d 729; 948 P.2d 805
- **Precedential status:** Published
- **Opinion:** Concurring in part by Durham
- **Judges:** Durham, Sanders, Smith
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Criticized — as noted by a later court.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4711359

## How later opinions describe it (automated extraction)

- affirming the trial court’s minimal penalty award because the agency had a good faith belief that the requested records were protected by copyright law
- emphasizing that the prevailing party in a public records act case is “entitled to all costs they have incurred in pursing this action”

## Opinion text

Durham, C.J.
(concurring in part, dissenting in part) — I agree that the Court of Appeals decision should be affirmed regarding Kitsap County’s obligation to allow copying of the engineering plans at issue. The majority, however, erroneously reverses the Court of Appeals order remanding for recalculation of the statutory penalty. Moreover, the majority fails to award the Lindbergs their mandatory costs, including attorney fees, that they are entitled to as the prevailing party in this action. I, therefore, dissent.
The trial court below awarded $1,110, which was "a combination of attorneys fees and . . . award of some penalties.” 46 The trial court apportioned $602.30 for costs incurred and "[a]n additonal [sic] award of $507.70 against the County [as being] appropriate under the circumstances.” 47 Although the decision to make an award is discretionary, having exercised its discretion, the trial court must award penalties of "not less than five dollars and not to exceed one hundred dollars” for each day that the requested record was withheld. 48 These penalties are strictly enforced to discourage improper denial of access *749 to public records. 49 The Court of Appeals correctly held that, upon the trial court’s decision to award penalties, the Lindbergs were entitled to an award within the statutory range for each day they were denied the right to copy the engineering plans. The trial court erred by computing the award in a vacuum. In order to comply with the statutory mandate, the trial court should have entered findings regarding the number of days the Lindbergs were denied the right to copy the plans and then applied a multiplier within the statutory range. Having failed to do so, the matter was correctly remanded for recalculation. Although the Lindbergs have asked this court to compute the statutory penalty instead of remanding, 50 the parties dispute the number of days at issue; therefore, remand is necessary to resolve this question of fact. The Court of Appeals decision should be affirmed in its entirety.
Moreover, the Lindbergs have requested costs and attorney fees on review. 51 RCW 42.17.340(4) provides, in part:
Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record . . . shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action.
We recently held that the award of costs and fees pursuant to this statute is mandatory when a person prevails against an agency in such an action. 52 Therefore, the Lind-bergs are entitled to all costs they have incurred in pursuing this action.
Alexander, J., concurs with Durham, C.J.
Verbatim Report of Proceedings at 16 (Jan. 14, 1994).
Clerk’s Papers at 47.
RCW 42.17.340(4).
Progressive Animal Welfare Soc’y v. University of Wash., 125 Wn.2d 243, 271-72 , 884 P.2d 592 (1994).
Answer to Pet. for Review at 19.
Id.
Amren v. City of Kalama, 131 Wn.2d 25, 35 , 929 P.2d 389 (1997).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4711359. Public record. Not legal advice.