Washington DOC Pays PLN $541,000 for Illegally Withholding Records

by Michael Rigby

The Washington Department of Corrections will pay Prison Legal News $541,000 for illegally withholding public records. It is the largest records-related settlement in Washington state history, and it brings the total amount PLN has won against the state DOC in the past decade to $1.3 million, mostly in attorney fees.

The settlement stems from a request PLN editor Paul Wright filed while imprisoned in Washington in 2000. Wright had sought information related to disciplinary actions taken against 14 prison medical workers for their roles in the deaths or serious injury of 10 prisoners.

The requested documents included an account of one prisoner?s death in a Monroe cell after medical staff determined he was ?faking? not being able to breathe, and another whose wound was closed with Krazy Glue.

The records also detail the firing of a husband-wife team of physician?s assistants who were let go in 1994 for gross incompetence?the husband for costing the state $5,600 when he had a prisoner airlifted to a Seattle hospital following a misdiagnosis, and the wife for sending a pregnant prisoner back to her cell despite hearing no fetal heartbeat.

?We knew medical care in prison was bad, and we knew their system of medical discipline was ineffective,? Wright said. ?It?s one thing to know it; it?s another thing to have the documents to prove it.?

The settlement, filed in Thurston County Superior Court on June 8, 2007, comes after a 7-year battle with the DOC for that information. In 2001 the DOC released 1,200 pages relating to Wright?s request but blacked out so much information?including the names of the employees?that PLN sued. A trial court and an appeals court sided with the DOC, but the state Supreme Court reversed and remanded the case back to the lower court in April 2005. See: Prison Legal News v. Washington DOC, 154 Wn.2d 628; 115 P.3d 316 (Wash. 2005).

Specifically, the Washington Supreme Court held that ?identifying information in public records related to medical misconduct investigations in Washington prisons and patient information other than names or identification numbers are [not] exempt from disclosure under the public disclosure act (PDA), chapter 42.17 RCW.?

Following the Supreme Court?s ruling, the DOC finally released the documents? but only after delaying 266 days, and at a cost of $100 a day for each of the two requests. Moreover, the agency destroyed 17 of the original documents by blacking out the redacted information with permanent ink while the litigation was pending. The DOC finally had to recreate the documents by holding them up to a light bulb to see through the ink. Another $48,000 was added to the fine for that misstep.

Attorney Michelle Earl-Hubbard, who represented PLN, said she wonders if the DOC would have taken so long to produce the documents if the state wasn?t paying the bill. ?The checks they write are ultimately not their own?it?s taxpayer money,? she said. Washington is one of the few states that levies financial penalties against government agencies that illegally withhold documents from requestors.

All totaled, PLN will receive $200,361.25 in fines and fees. Earl-Hubbard?s Seattle law firm?Davis, Wright & Tremaine?will be paid $341,000 in attorney fees and costs. Davis, Wright and Tremaine represented PLN pro bono throughout the litigation. In addition to Michelle Earl Hubbard, PLN was skillfully represented through the long litigation by attorneys Andy Mar and Alison Howard.

PLN plans to use the money to buy an office for PLN in Seattle. See: Prison Legal News v. Washington State Department of Corrections, Thurston County Superior Court, Case No. 01-2-00828-2.

The DOC announced it would make no changes in its processing of public records requests as a result of this settlement. And indeed it has not, it continues to deny and thwart PLN?s public records requests. PLN editor Paul Wright was the recipient of the Washington Coalition for Open Government?s 2007 James Madison Award for his role in the lawsuit.

For his part, Washington Attorney General Rob McKenna, who campaigned as a proponent of open government and as a strong supporter of the state?s public records act, requested that legislation be introduced which would prohibit Washington prisoners from receiving penalty awards when government agencies illegally withhold government records. Instead, such penalty awards from lawless government agencies would go to a state victim?s compensation fund, which mostly disburses money to tell state employees about victims. The bill had bipartisan support but did not pass this session. Assistant attorney general Tim Ford acknowledges the new proposed law would not have prevented the payout in this case as it was brought by a media publication, PLN, not a prisoner.

Politicians and prison officials have attempted to exclude Washington prisoners or exempt the DOC from the Public Records Act since at least 1996 when Wright first began using it to publish exposes on racism, brutality and corruption within Washington?s prison system. This is the third public records lawsuit PLN has won against the Washington DOC since 1999.


Additional sources: seattlepi.nwsource.com, theolympian.com, seatletimes.nwsource.com