COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON

JEFF ZINK & DONNA ZINK, husband 

and wife,

Appellants,

v.

CITY OF MESA, a Washington 

municipal corporation,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

)

No. 34599-8-III

ORDER AMENDING OPINION 

IT IS ORDERED the opinion filed June 14, 2018, is amended as follows:

On page 8, first full paragraph, line 7, replace the word “Benton” with the word 

“Franklin.”

PANEL: Judges Siddoway, Lawrence-Berrey, Korsmo

FOR THE COURT:

___________________________________

ROBERT E. LAWRENCE-BERREY

Chief Judge

FILED

JUNE 19, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

JEFF ZINK & DONNA ZINK, husband 

and wife,

Appellants,

v.

CITY OF MESA, a Washington municipal 

corporation,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

No. 34599-8-III

OPINION PUBLISHED 

IN PART

SIDDOWAY, J. — In this, the third appeal of Donna and Jeff Zink’s 2003 Public 

Records Act (PRA)1lawsuit against the city of Mesa, we address whether a trial court 

may consider the small size of a jurisdiction and the disproportionate burden on its 

taxpayers of a penalty whose amount would be appropriate if imposed on a larger 

jurisdiction. Rejecting both parties’ appeals, we hold that the trial court did not err or 

abuse its discretion in arriving at a preliminary penalty based on culpability and then 

 

1 Chapter 42.56 RCW.

FILED

JUNE 14, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34599-8-III

Zink v. City of Mesa

2

reducing the penalty to an amount ($350 per taxpayer) deemed necessary and sufficient 

to deter future misconduct. 

We also address the application of legislation enacted in 2011 that eliminated a $5 

floor on per-day penalties under the PRA and hold that as remedial legislation, it is 

retroactive. We affirm.

FACTS AND PROCEDURAL BACKGROUND

In August 2002, the city of Mesa took the position that a building permit granted 

to Donna and Jeff Zink for home repairs in April 2000 had expired for suspension or 

abandonment. Zink v. City of Mesa, 137 Wn. App. 271, 273-74, 152 P.3d 1044 (2007) 

(Zink I). After the city’s board of appeals affirmed the city’s decision, the Zinks filed a 

petition under LUPA2in which they prevailed following city concessions. Id. at 274. In 

Zink I, this court rejected the parties’ cross appeals of the trial court’s award of attorney 

fees.

In the same month that the city deemed their building permit to have expired, the 

Zinks began filing public record requests for documents held by the city. Zink v. City of 

Mesa, 140 Wn. App. 328, 333, 166 P.3d 738 (2007) (Zink II). From August 2002 to 

January 31, 2005, the requests, by the city’s count, totaled 172. Id. Many, but not all,

related to the city’s decision to terminate the Zinks’ building permit; others related to the 

 

2 The Land Use Petition Act, chapter 36.70C RCW.
No. 34599-8-III

Zink v. City of Mesa

3

Zinks’ “self-described ‘watchdog type’ role in the City.” Id. In April 2003, the Zinks 

filed an action against the city alleging violations of the Public Disclosure Act, former 

chapter 42.17 RCW.3Id. at 334.

At the first show cause hearing conducted in the matter, the trial court made no

findings on specific alleged violations, finding instead in general terms that the city had 

“‘more than substantially complied’” with the requests, that it was a “‘practical 

impossibility’” for the city to strictly comply given the number of requests and its limited 

manpower, and that the Zinks’ requests “‘amounted to unlawful harassment.’” Id. at 

335. 

In Zink II, this court reversed the trial court and remanded with directions to enter 

findings on whether the city strictly complied with the PRA in the instances identified by 

the Zinks. Where violations had occurred, this court directed the trial court to award 

penalties, costs, and attorney fees. Id. at 349.

After a hearing following remand, the trial court ordered the city to pay the Zinks 

a total judgment of about $245,940, consisting of $167,930 in penalties, $5,700 in costs, 

 

3

In 2005, the portion of the Public Disclosure Act that is now the Public Records 

Act (PRA) was renamed and recodified as chapter 42.56 RCW. LAWS OF 2005, ch. 274 

(effective July 1, 2006). The provisions were not otherwise changed. We use the current 

term “PRA” to refer to the public record provisions as codified before and after July 1, 

2006.
No. 34599-8-III

Zink v. City of Mesa

4

and $72,309 in attorney fees. Zink v. City of Mesa, 162 Wn. App. 688, 701, 256 P.3d 384 

(2011) (Zink III).

The Zinks again appealed to this court and the city again cross appealed. Id. 

Before the matter was set for argument, however, the Washington Supreme Court 

accepted review of Division One’s decision in Yousoufian v. Office of Ron Sims, 137 Wn. 

App. 69, 151 P.3d 243 (2007) (Yousoufian II4) on which the trial court in the Zinks’ case 

had relied in arriving at its per-day penalty awards. The city’s request for a stay of the 

appeal pending the issuance of the Supreme Court’s decision was granted by this court

and was lifted in May 2010 after the Supreme Court issued Yousoufian v. Office of Ron 

Sims, 168 Wn.2d 444, 229 P.3d 735 (2010) (Yousoufian III). Zink III, 162 Wn. App. at 

702. 

In Yousoufian III, the Supreme Court recognized that trial courts would be well 

served by guidance on how the high court believed they should exercise their broad 

discretion to impose PRA penalties, given the dearth of reported cases. Yousoufian III, 

 

4 We refer to three of the six reported and unreported decisions in Armen 

Yousoufian’s lawsuit against the office of Ron Sims. We refer to them as Yousoufian I, 

Yousoufian v. Office of King County Exec., 152 Wn.2d 421, 98 P.3d 463 (the 2004 

Supreme Court decision), Yousoufian II (the 2007 Court of Appeals decision) and 

Yousoufian III, Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (the 2010 

Supreme Court decision).
No. 34599-8-III

Zink v. City of Mesa

5

168 Wn.2d at 463. It announced 16 nonexclusive mitigating and aggravating factors trial 

courts should use as a guide in determining penalty amounts. Id. at 467-68.5 

In the decision in this matter issued after the stay was lifted, dozens of challenges 

to the trial court’s calculations of the penalty days for the city’s 33 violations were 

resolved. Zink III, at 706-22, 730. Recognizing that the trial court had used a nowrejected method for calculating the amount of the per-day penalties, however, this court 

 

5 The mitigating factors, which may serve to decrease a penalty, include:

(1) a lack of clarity in the PRA request; (2) the agency’s prompt response or 

legitimate follow-up inquiry for clarification; (3) the agency’s good faith, 

honest, timely, and strict compliance with all PRA procedural requirements 

and exceptions; (4) proper training and supervision of the agency’s 

personnel; (5) the reasonableness of any explanation for noncompliance by 

the agency; (6) the helpfulness of the agency to the requestor; and (7) the 

existence of agency systems to track and retrieve public records.

Yousoufian III, 168 Wn.2d at 467 (footnotes omitted). The aggravating factors, which 

may support increasing a penalty, include:

(1) a delayed response by the agency, especially in circumstances making 

time of the essence; (2) lack of strict compliance by the agency with all the 

PRA procedural requirements and exceptions; (3) lack of proper training 

and supervision of the agency’s personnel; (4) unreasonableness of any 

explanation for noncompliance by the agency; (5) negligent, reckless, 

wanton, bad faith, or intentional noncompliance with the PRA by the 

agency; (6) agency dishonesty; (7) the public importance of the issue to 

which the request is related, where the importance was foreseeable to the 

agency; (8) any actual personal economic loss to the requestor resulting 

from the agency’s misconduct, where the loss was foreseeable to the 

agency; and (9) a penalty amount necessary to deter future misconduct by 

the agency considering the size of the agency and the facts of the case.

Id. at 467-68 (footnotes omitted).
No. 34599-8-III

Zink v. City of Mesa

6

vacated the penalties and remanded with directions to determine penalty amounts in 

accordance with the guidance provided by Yousoufian III. Id. at 705-06, 730.

Four-and-a-half years later, in December 2015, the city filed a motion for partial 

summary judgment. Among the relief it requested was a ruling that Substitute House Bill 

1899 (SHB 1899), enacted in May 2011, applied retroactively to the penalty phase of the 

PRA proceeding. The 2011 legislation removed what had formerly been a $5 floor on 

per-day penalties. LAWS OF 2011, ch. 273, § 1 (effective July 22, 2011) amending RCW 

42.56.550(4). A new trial court to whom the matter was assigned following remand ruled 

that SHB 1899, being remedial, applied retroactively. 

The Zinks then filed a motion for assessment of penalties, attorney fees, and costs 

against the city, supported by extensive documentation. The parties agreed that since this 

court had resolved the number of penalty days in Zink III, all that remained was for the 

trial court to set penalty amounts. 

The trial court held a three-day hearing in which it used individual worksheets to 

assess the Yousoufian factors for each violation, indicating, with respect to each factor, 

whether it was “strongly present,” “moderately present,” “not present,” or “ NA [not 

applicable].” Clerk’s Papers (CP) at 2437-69 (some capitalization omitted).

A few weeks thereafter, the trial court convened a hearing to deliver an oral ruling. 

It provided the parties with copies of its 33 penalty worksheets. The preliminary 

penalties identified as appropriate ranged from $1 per day on the low end to $100 per day 
No. 34599-8-III

Zink v. City of Mesa

7

on the high end. Some of the penalties were adjusted for four periods falling between the 

start dates established in Zink III and November 7, 2008, the date that findings, 

conclusions and an order for the second show cause hearing were entered.

6

After identifying a calculation error, it was determined that the total penalty based 

on the 33 worksheet amounts and the four calculation periods was $352,955. The trial 

court told the parties it was “a little unsettled” by the $352,955 figure and would reserve 

a final ruling until the presentment of proposed findings and conclusions. Report of 

Proceedings (RP) (May 10, 2016) at 55. It rejected a party’s reference to the court as 

having “aimed” for a different range, explaining, “I have not aimed at any number, any 

gross number. I anticipated a methodology where I would just apply the factors as 

objectively as I could and let the chips fall where they may.” Id. at 54-55. The court

added, “I also told you that my intentions were to then look at that number to see if I was 

uncomfortable with it.” Id. at 55. The court told the parties it was going to give thought 

to the legal question of whether it had authority to “go back and do a wholesale 

 

6 The “primary period” ran from the start date through June 24, 2003, when the 

city’s clerk/treasurer received legal advice from a municipal research agency on PRA 

exemptions for names and residential addresses of individuals. The “secondary period” 

began thereafter and ran to May 13, 2005, when the original trial court announced its 

initial ruling following the first show cause hearing. The “tertiary period” began 

thereafter and ran to August 23, 2007, the date on which this court reversed the trial court

and remanded. The “quaternary period” began thereafter and ran to November 7, 2008, 

the date the original trial court entered its final order following remand.
No. 34599-8-III

Zink v. City of Mesa

8

adjustment to the total. And I don’t know the answer to that question.” Id. at 56-57. It

invited the parties to brief the issue in connection with their presentation of proposed 

findings of fact and conclusions of law. Id. 

The city’s submissions thereafter included a declaration from its clerk/treasurer 

identifying the amounts and restrictions on its 2015 and 2016 tax revenues, and its 

counsel’s illustration of the impact of the trial court’s preliminary penalty figure, given 

the city’s small size and limited resources. Comparing Mesa with another city in Benton 

County, the city explained:

If Pasco had treated Ms. Zink the way Mesa treated Ms. Zink, the Court’s 

preliminary penalty award of $352,955 might be warranted. But a penalty 

of that size would “only” amount to $5 per resident for Pasco, whereas that 

same penalty will cost each resident of Mesa $718. If Pasco was penalized 

at $718-per-resident, the total penalty would top $49 million. The City of 

Mesa suggests that no one would support giving away $49 million of tax 

payer dollars based on the statutory violations of a handful of government 

employees.

CP at 2899-2900 (footnotes omitted).

At the hearing on entry of the final order, the trial court told the parties it had 

concluded that a $175,000.00 penalty was “sufficient to deter future conduct . . . . It is 

such an amount that would avoid this windfall to the plaintiffs. It will certainly sting the 

city but will not, in my judgment, cripple them.” RP (June 29, 2016) at 59. Its written 

findings and conclusions state:

After reaching the preliminary total of $352,954, the Court has considered 

whether that amount was appropriate, taking into account Mesa’s small 
No. 34599-8-III

Zink v. City of Mesa

9

size, limited resources, and the deterrent purposes of PRA penalties. Based

on this consideration, the Court finds that the preliminary penalty award 

was greater than needed to serve the purposes of PRA penalties and should 

be reduced to $175,000.

CP at 2430. The total judgment awarded was $200,746.47: $175,000.00 for PRA 

penalties, and $25,746.47 in attorney fees and costs incurred in the prior appeal.

The Zinks appeal and the city cross appeals.

ANALYSIS

The Zinks’ extensive briefing describes each of the city’s 33 public record 

violations, but their assignments of error are more limited, requiring us to address only 

two legal issues: (1) Does the 2011 legislative amendment eliminating the $5 floor on the 

per-day penalty amount apply retroactively, and (2) does a trial court have discretion 

under the PRA to globally reduce penalties based on an agency’s size, limited resources, 

and the deterrent purposes of PRA penalties. Br. of Appellant at 2.7

 

7

 The Zinks make a third assignment of error to the court’s alleged construction of 

the PRA to “allow[ ] a court to set a lower per-day penalty where an agency has 

continued to violate the act for a high number of days.” Br. of Appellant at 2. They cite

in support only RP (June 29, 2016) at 24-25, which does not support its characterization 

of the court’s reasoning.

In the trial court, the city did advance such a reading of Wade’s Eastside Gun 

Shop, Inc. v. Department of Labor & Industry, 185 Wn.2d 270, 291, 372 P.3d 97 (2016), 

which we question. See CP at 2831-32 (arguing that one could infer the court’s approval 

of reducing a per-day penalty to $0.01 in order to compensate for a long period of 

withholding). Cf. Koenig v. City of Des Moines, 158 Wn.2d 173, 188-89, 142 P.3d 162 

(2006) (citing Yousoufian I, 152 Wn.2d at 437) (holding that the trial court lacks 

discretion to reduce the number of penalty days to adjust for a long period of 

withholding). But the trial court in this case did not rely on this reasoning for its 
No. 34599-8-III

Zink v. City of Mesa

10

The city raises two issues in its cross appeal: (1) whether the trial court abused its 

discretion by imposing a penalty that exceeds 100 percent of the city’s 2015 annual 

general fund unrestricted tax revenue and amounts to an averaged cost of approximately 

$350 per resident, and (2) whether insufficient evidence supports the trial court’s finding 

that a municipal research agency’s memo should have put the city on notice of the 

impropriety of some of its document redactions. Br. of Resp’t at 4.

In the published portion of this decision, we address the second issue raised by the 

Zinks and the first issue raised by the city: a trial court’s discretion (and perhaps its duty)

to adjust what would be an appropriate penalty amount in a typical case, where that 

penalty amount is more than necessary to deter a small jurisdiction or agency, to the point 

of being financially crippling. We also address the Zinks’ challenge to the trial court’s 

ruling that the 2011 amendment was remedial. We address the remaining issues in the 

unpublished portion of the decision.

I. ISSUES ARISING FROM THE TRIAL COURT’S ADJUSTMENT OF ITS TOTAL PENALTY 

BASED ON THE SIZE OF THE AGENCY AND THE FACTS OF THE CASE

APPEAL

A. A trial court does not abuse its discretion by treating the ninth “deterrence” 

Yousoufian aggravating factor as the most important aggravating factor in 

an appropriate case

 

reduction of the penalty nor does the city seriously defend the reduction of the penalty on 

this basis on appeal. Since we do not find it to have been a basis for the penalty 

assessment, we do not address it further.
No. 34599-8-III

Zink v. City of Mesa

11

The PRA mandates an award of “all costs, including reasonable attorney fees” to a 

person who prevails against an agency in an action in the courts seeking the right to 

inspect or copy a public record or to receive a response to a public record request within a 

reasonable amount of time. RCW 42.56.550(4). In addition,

it shall be within the discretion of the court to award such person an amount 

not to exceed one hundred dollars for each day that he or she was denied 

the right to inspect or copy said public record.

Id. (emphasis added). We review a trial court’s award of penalties under the PRA for an 

abuse of discretion. Bricker v. Dep’t of Labor & Indus., 164 Wn. App. 16, 21, 262 P.3d 

121 (2011). An abuse of discretion occurs when a decision is manifestly unreasonable or 

exercised on untenable grounds or for untenable reasons. Graves v. Emp’t Sec. Dep’t, 

144 Wn. App. 302, 309, 182 P.3d 1004 (2008).

Our Supreme Court has stated that the PRA penalty “is intended to ‘discourage

improper denial of access to public records and [encourage] adherence to the goals and 

procedures dictated by the statute.’” Yousoufian v. Office of King County Exec., 152 

Wn.2d 421, 429-30, 98 P.3d 463 (2004) (Yousoufian I) (alteration in original) (quoting 

Hearst Corp. v. Hoppe, 90 Wn.2d 123, 140, 580 P.2d 246 (1978)), quoted in Yousoufian 

III, 168 Wn.2d at 461. The PRA’s goals and procedures, as we often repeat, serve as a

“strongly worded mandate for broad disclosure of public records.” Hoppe, 90 Wn.2d at 

127.
No. 34599-8-III

Zink v. City of Mesa

12

In Zink III, this case was remanded so that the trial court could arrive at a penalty 

with the guidance provided by Yousoufian III. By employing its worksheet, the trial 

court scrupulously considered each of the aggravating and mitigating factors identified in 

that decision. But the Supreme Court emphasized in Yousoufian III that the trial court 

was not required to weigh each factor equally:

We emphasize that the factors may overlap, are offered only as guidance, 

may not apply equally or at all in every case, and are not an exclusive list 

of appropriate considerations. Additionally, no one factor should control. 

These factors should not infringe upon the considerable discretion of trial 

courts to determine PRA penalties.

Yousoufian III, 168 Wn.2d at 468.

The issue raised by the Zinks’ appeal is whether making a global adjustment based 

on a jurisdiction’s “small size, limited resources, and the deterrent purposes of PRA 

penalties” is improper given the purposes of the PRA, and whether even if it may be

proper in some cases, the trial court abused its discretion by relying on the presence of 

those factors to reduce its preliminary penalty figure by half. CP at 2430. The related 

issue raised by the city’s cross appeal is whether the trial court abused its discretion by 

not reducing its preliminary penalty figure even further. 

The issue pits the interest of the Zinks in acquiring a larger, culpability-focused

penalty that the trial court would have imposed on a larger, more typical agency against 

the financial burden to the city and its taxpayers.
No. 34599-8-III

Zink v. City of Mesa

13

The trial court found 3 of the city’s violations to constitute bad faith, found 2 to

have been reckless, and found 18 to have been negligent. With respect to only 10 of the 

violations did it find that the fifth fault aggravator (“negligent, reckless, wanton, bad faith 

or intentional noncompliance with the PRA” (quoting Yousoufian III, 168 Wn.2d at 468))

was not present to any degree. 

As argued by the Zinks, Washington decisions provided for much of the history of 

the PRA that “‘[w]hen determining the amount of the penalty to be imposed “the 

existence or absence of [an] agency’s bad faith is the principal factor which the trial court 

must consider.”’” Yousoufian III, 168 Wn.2d at 460 (quoting Amren v. City of Kalama, 

131 Wn.2d 25, 37-38, 929 P.2d 389 (1997) (alteration in original) (quoting Yacobellis v. 

City of Bellingham, 64 Wn. App. 295, 303, 825 P.2d 324 (1992), abrogated on other 

grounds by Amren, 131 Wn.2d 25)). And in light of the $5 floor for a penalty provided 

by former RCW 42.56.550(4) (2005), Washington cases formerly held that a penalty was 

mandated whenever a violation was found. As our Supreme Court explained, “If the trial 

court refuses to assess any penalty, then it is setting the penalty at less than $5, which is 

contrary to the unambiguous language used in [former] RCW 42.17.340(4) [(1992)].” 

Yousoufian I, 152 Wn.2d at 433 (citing King County v. Sheehan, 114 Wn. App. 325, 355, 

57 P.3d 307 (2002)). In some cases, Yousoufian I being an example, fault was a basis for 

remanding if a trial court was deemed to have abused its discretion by not fixing the per 
No. 34599-8-III

Zink v. City of Mesa

14

day penalty at what the appellate court deemed to be a reasonable amount within the 

penalty range. See id. at 439.

But in none of those cases was it contended that increasing the per-day penalty 

amount by focusing solely on fault would push the total penalty to an amount going well 

beyond what was needed to deter future violations, given the size and financial resources

of the jurisdiction or agency.

Since Yousoufian I, Amren, and Yacobellis, legislative amendments have increased

a trial court’s discretion in setting penalties for PRA violations and decisions of our 

Supreme Court have explicitly recognized that an agency’s smallness and limited 

resources can matter. Yousoufian III, for example, explicitly recognized that the small

size of an agency, in the context of deterrence, justified a smaller per-day penalty. The 

court expressed concern in that case that in setting penalties below, the trial court ignored 

deterrence. 168 Wn.2d at 462-63. Mr. Yousoufian had sued King County, yet in setting 

the penalty on remand at $15 per day, the trial court relied on American Civil Liberties 

Union v. Blaine School District No. 503, 95 Wn. App. 106, 975 P.2d 536 (1999), which 

Yousoufian III characterizes as having involved “a small school district.” 168 Wn.2d at 

463. The court observed, “[H]ere the county is the most populous county in the state. 

The penalty needed to deter a small school district and that necessary to deter a large 

county may not be the same.” Id. To accomplish the PRA’s purpose, the court said, “the 

penalty must be an adequate incentive to induce future compliance.” Id. 
No. 34599-8-III

Zink v. City of Mesa

15

The court in Yousoufian III also held that only in limited circumstances is 

compensating a plaintiff a relevant consideration in setting a penalty. Given the 

importance of deterrence, the court held that compensating a plaintiff should be a factor 

in increasing a penalty only if an economic loss to the record requester was a foreseeable 

result of the agency’s misconduct. Id. at 461-62. Earlier cases had recognized that 

because the PRA separately provides for the recovery of attorney fees and costs incurred 

by the requester in pursuing a PRA claim, attorney fees are not relevant as an economic 

loss. Yacobellis, 64 Wn. App. at 304. 

In completing its worksheets in this case, the trial court identified only three 

violations in connection with which the Zinks incurred foreseeable personal economic 

loss. The record contains no evidence of the amount of the loss, nor did the trial court 

make a finding of its amount. The court’s notes suggest that the economic loss arose 

from the Zinks’ delayed receipt of three records that would have been important to their 

appeal of the termination of their building permit. Their LUPA appeal was ultimately 

successful, however, and the trial court in that matter awarded the Zinks their reasonable 

attorney fees and costs. Zink I, 137 Wn. App. at 277-78. The Zinks offer no evidence or 

argument that the $175,000 adjusted penalty amount failed to take into consideration any 

foreseeable economic loss to them.

After Yousoufian III provided guidance and affirmed the trial court’s

“considerable discretion” in determining PRA penalties, 168 Wn.2d at 466, the 
No. 34599-8-III

Zink v. City of Mesa

16

legislature went further by enacting SHB 1899 and eliminating the $5 penalty floor, 

thereby also eliminating the requirement that a trial court impose a penalty whenever a 

violation is found.8 A trial court’s refusal to impose a penalty remains reviewable for 

abuse of discretion. 

The city contends it was appropriate for the trial court to fix a penalty that created 

no more hardship for it than has been created for agencies committing similar violations. 

It asserts that the largest penalty recorded in a reported decision occurred in Wade’s

Eastside Gun Shop, Inc. v. Department of Labor & Industry, 185 Wn.2d 270, 372 P.3d 97 

(2016), in which the total penalty imposed was $502,827.40, an amount representing 2.1 

percent of the Department of Labor and Industries’ general fund budget in 2015. Br. of 

Resp’t at 2 n.6. In a table in its opening brief, the city identifies 11 other reported cases 

in which an agency’s violations, although egregious in some cases, never exceeded one 

 

8

In committee hearings on SHB 1899, a deputy attorney general explained that 

eliminating the $5 minimum would give trial courts the discretion not to impose any 

penalty. See Hr’g on SHB 1899 Before the S. Government Operations, Tribal Relations 

& Elections Comm., 62d Leg., Reg. Sess., at 75 min., 0 sec. to 75 min., 25 sec. and 76 

min., 40 sec. to 76 min., 50 sec. (Wash. Mar. 17, 2011), video recording by TVW, 

Washington State’s Public Affairs Network, https://www.tvw .org/watch/?eventID

=2011031165. 

The legislative change passed overwhelmingly. SHB 1899 passed the House by a 

vote of 96-2 and passed the Senate by a vote of 47-0, with two senators excused. See HB 

1899: Bill History, WASH. ST. LEGISLATURE, http://apps2.leg.wa.gov/billsummary

?BillNumber=1899&Year=2011&BillNumber=1899&Year=2011[https://perma.cc

/RFE3-7F2C].
No. 34599-8-III

Zink v. City of Mesa

17

percent of the agency’s annual general fund budget.9 A search of Washington cases 

reveals that most penalty awards against jurisdictions in PRA cases rarely exceed more 

than a few dollars per resident on a per capita basis. E.g., Yousoufian III, 168 Wn.2d at 

470 (awarding $371,340.00, which amounts to approximately 19 cents per resident); 

Cedar Grove Composting, Inc. v. City of Marysville, 188 Wn. App. 695, 707, 354 P.3d 

249 (2015) (awarding $143,740.00, which equals approximately $2.39 per resident).10

 

9

 Case Penalty General Fund Budget

Yousoufian v. Office of Ron Sims $371,340 $3.1 billion

Cedar Grove v. City of Marysville $143,740 $42.2 million

Lindell v. City of Mercer Island $90,560 $22.775 million

Bricker v. Dep’t of L&I $29,445 $22.224 million

Adams v. DOC $24,535 $1.6 billion

Wade’s v. Dep’t of L&I $502,827 $22.224 million

West v. Thurston County $16,020 $81 million

Sanders v. State $18,112 $4 million

KitsapCy. Pros. Att’ysGuild v. KitsapCy. $845 $80 Million

ACLU v. Blaine School District $5,770 $5 million (est.)

Lindberg v. Kitsap County $500(est.) $39 million (est.)

Br. of Resp’t at 43 (footnotes omitted).

10 We take judicial notice of 2010 United States Census published population 

figures. See QuickFacts King County, Washington, U.S. CENSUS BUREAU, 

https://www.census .gov/quickfacts/fact/table/kingcountywashington/PST045216;

QuickFacts Marysville City, Washington, U.S. CENSUS BUREAU, https://www.census.gov

/quickfacts/fact/table /marysvillecitywashington/PST045216.
No. 34599-8-III

Zink v. City of Mesa

18

Most of the aggravating or mitigating factors identified in Yousoufian III bear on

some operational shortcoming, inattention, or more blameworthy conduct without respect 

to the penalty amount sufficient to deter future violations. The Supreme Court’s holding 

that the Yousoufian factors “may not apply equally or at all in every case,” 168 Wn.2d at 

468, authorizes a trial court in an appropriate case to attribute more weight to the ninth 

aggravating factor, which does take deterrence and the size of the agency into 

consideration, than to other factors that do not. This is a case in which attributing more 

weight to the ninth deterrence factor was reasonable. 

“The trial court is in the best position to make an individual, fact-driven inquiry 

into what PRA penalties are necessary to achieve the penalty provision’s goal of 

deterring unlawful nondisclosure.” Wade’s Eastside Gun Shop, 185 Wn.2d at 280. The

trial court did not err or abuse its discretion in concluding that the penalty amount needed 

to deter the city is not the same as that presented in cases involving Washington 

jurisdictions or agencies with much larger budgets and resources.

B. The trial court’s two-step method for adjusting a preliminary penalty was 

not erroneous or an abuse of discretion

 

We also find no fault with the process by which the trial court analyzed the 16 

Yousoufian factors by evaluating the evidence first as if the action involved a more 

typical agency, and only then taking a second look, to arrive at an amount that would 

serve as a deterrent and yet not cripple the city. As the judge explained, he was trained as 
No. 34599-8-III

Zink v. City of Mesa

19

an engineer to approach a problem objectively but then “you should always then stand 

back and look at your results to make sure that it really makes sense.” RP (May 10, 

2016) at 41. 

Evidence of the violations and the relevant Yousoufian factors was presented 

serially, over three days. The vast majority of the Yousoufian factors could be applied on 

the case-by-case evidence and the trial court reasonably wished to make notes of its

assessment as the evidence of each violation was presented. With the benefit of 

hindsight, it was probably not possible to assess the ninth deterrence aggravator other 

than on a cumulative basis. To butcher an aphorism, as long as one is eying one tree at a 

time, one cannot see the forest.

Neither the PRA nor our Supreme Court has dictated any particular method for 

applying the mitigating and aggravating factors. The manner in which the trial court

proceeded was transparent and fair. No error or abuse of discretion is shown.

CROSS APPEAL

C. It is not within the authority of this court to impose a cap on PRA penalties,

and the city has not shown that the trial court abused its discretion by not 

reducing the penalty further

The city asks us to establish a cap on PRA penalty awards of one percent of an 

agency’s annual general fund budget. Should we decline, it asks us to find that the trial 

court abused its discretion by refusing to reduce the penalty further.
No. 34599-8-III

Zink v. City of Mesa

20

The due process clause of the Fourteenth Amendment to the United States 

Constitution places a limitation on the power of states to prescribe penalties for violations 

of their laws. St. Louis, Iron Mountain & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67, 40 

S. Ct. 71, 64 L. Ed. 139 (1919). The standard articulated in the almost century-old 

Williams decision continues to govern review of whether an award of statutory damages 

violates due process. E.g., Sony BMG Music Entm’t v. Tenenbaum, 719 F.3d 67, 70-71 

(1st Cir. 2013); TXO Prod. Corp. v. All. Res. Corp., 509 U.S. 443, 453-54, 113 S. Ct. 

2711, 125 L. Ed. 2d 366 (1993). Williams states that while a limitation imposed by the 

Fourteenth Amendment has been fully recognized, it has always been “with the express 

or tacit qualification that the states still possess a wide latitude of discretion in the matter, 

and that their enactments transcend the limitation only where the penalty prescribed is so 

severe and oppressive as to be wholly disproportionate to the offense and obviously

unreasonable.” 251 U.S. at 66-67.

In Perez-Farias v. Global Horizons, Inc., 175 Wn.2d 518, 530, 286 P.3d 46 

(2012), our Supreme Court addressed questions certified by the Ninth Circuit Court of 

Appeals having to do with a trial court’s discretion when imposing penalties under the 

farm labor contractors act, chapter 19.30 RCW. The Supreme Court declined to address 

the standard for Fourteenth Amendment review of such penalties, deferring to the Ninth 

Circuit, which thereafter applied the Williams standard. Perez-Farias v. Glob. Horizons, 

Inc., 499 F. App’x 735, 737 (9th Cir. 2012). In otherwise answering the questions 
No. 34599-8-III

Zink v. City of Mesa

21

certified, however, our Supreme Court rejected an argument that it should impose a cap 

on the statutorily-authorized penalty, explaining:

The legislature has declined to create such a cap . . . . We find nothing in 

either Washington case law or the statutes to support capping an award of 

damages under these circumstances. A contrary holding would be 

inconsistent with the overall purposes and aim of the statute. We hold no 

state public policy or due process principles require reduction in the total 

damages mandated by statute.

Perez-Farias, 175 Wn.2d at 533 (footnote omitted). While Perez-Farias involved a 

mandatory penalty while this case involves a discretionary one, the absence of a 

decisional or statutory basis for judicially imposing a cap is the same. We violate the 

separation of powers doctrine when we assume “tasks that are more properly 

accomplished by other branches.” Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 

506, 198 P.3d 1021 (2009) (quoting Carrick v. Locke, 125 Wn.2d 129, 136, 882 P.2d 173 

(1994) (internal quotation marks and alterations omitted). If a cap is to be imposed, it 

will have to be imposed by the legislature.

Turning to whether the trial court abused its discretion by not imposing a lower 

penalty on the city, we note that in the handful of instances exhibiting the most 

culpability, the trial court observed that “[t]he mayor injected herself in decisions 

regarding the release of records. Records were hidden. Records were destroyed. 

Records were lost.” RP (May 10, 2016) at 10. As to some other violations, the trial court

found that the city “failed miserabl[y] to train its staff” and failed to abandon invalid 
No. 34599-8-III

Zink v. City of Mesa

22

claims of exemptions. Id. It found that the city was, in some cases, disparately 

uncooperative with the Zinks. Ms. Zink testified in the first show cause hearing that she 

believed her and her husband’s “watchdog” activities were the reason for the city’s

resistance to filling her public record requests. Zink II, 140 Wn. App. at 334. 

The city does not dispute that its level of culpability supports the preliminary perday penalty figures imposed by the court; it argues only for more parity in financial 

impact as compared to larger agencies. Deterrence based on an agency’s size is only one 

of 16 Yousoufian factors, however. Had the trial court considered only deterrence and 

parity, it would have violated the Supreme Court’s directive in Yousoufian III that “no 

one factor should control.” 168 Wn.2d at 468. 

While we might have imposed a different penalty, we cannot say that the trial 

court abused its discretion by refusing to reduce the penalty further. 

II. THE PRA’S 2011 AMENDMENT BY SHB 1899 IS REMEDIAL AND OPERATES

RETROACTIVELY

The Zinks argue that the trial court erred in construing SHB 1899 as remedial and 

operating retroactively.

11

 The trial court imposed a penalty for each violation for each 

day of the over 20,000-day penalty period, but it did rely on the retroactive application of 

 

11 The Zinks also make a handful of arguments that SHB 1899 cannot operate 

retroactively for other reasons. We reject all of the arguments. Given the criteria for 

publication, we will reverse the order in which we would ordinarily address those 

arguments and relegate them to the unpublished portion of the decision. See RAP 

12.3(d).
No. 34599-8-III

Zink v. City of Mesa

23

the 2011 legislation to impose a preliminary penalty of $1 per day for some violations 

and some periods. Whether a statute applies retroactively is a question of law that this 

court reviews de novo. State v. Schenck, 169 Wn. App. 633, 642, 281 P.3d 321 (2012). 

Generally, statutory amendments are presumed to operate prospectively and not 

retroactively. Hale, 165 Wn.2d at 507-08. The presumption against retroactivity is 

overcome when the legislature explicitly provides for retroactive application, when an 

amendment is curative in the sense of “clarif[ying] or mak[ing] a technical correction to 

an ambiguous statute,” or when the enactment is remedial. In re Pers. Restraint of Flint, 

174 Wn.2d 539, 546, 277 P.3d 657 (2012). Where “a statute is remedial and its remedial 

purpose is furthered by retroactive application, the presumption favoring prospective 

application is reversed.” Haddenham v. State, 87 Wn.2d 145, 148, 550 P.2d 9 (1976). 

“‘A statute is remedial when it relates to practice, procedure, or remedies and does not 

affect a substantive or vested right.’” 1000 Virginia Ltd. P’ship v. Vertecs Corp., 158 

Wn.2d 566, 586, 146 P.3d 423 (2006) (quoting Miebach v. Colasurdo, 102 Wn.2d 170, 

181, 685 P.2d 1074 (1984). 

RCW 42.56.550, both before and after its amendment by SHB 1899, governs 

judicial review of agency actions under the PRA. Its subsection (4), both before and after 

its amendment by SHB 1899, identifies the remedies available to a person who prevails 

against an agency in an action brought under the statute. By removing the floor to the 
No. 34599-8-III

Zink v. City of Mesa

24

per-day penalty amount that a trial court can impose, SHB 1899 related to a remedy. The 

trial court correctly concluded that the 2011 amendment was remedial and retroactive.

The Zinks argue that even if the 2011 amendment was remedial, it affected a 

vested right. “‘[A] right cannot be considered a vested right, unless it is something more 

than such a mere expectation as may be based upon an anticipated continuance of the 

present general laws: it must have become a title, legal or equitable, to the present or 

future enjoyment of property.’” Miebach, 102 Wn.2d at 181 (quoting Gillis v. King 

County, 42 Wn.2d 373, 377, 255 P.2d 546 (1953)). Accordingly, a party with a cause of 

action or remedy created by statute does not have a vested right until a final judgment is

entered. Haddenham, 87 Wn.2d at 149. 

The 2011 amendment removing the PRA’s penalty floor is remedial and the trial 

court properly applied it retroactively.

Affirmed.

The remainder of this opinion has no precedential value. Therefore, it will be filed 

for public record in accordance with RCW 2.06.040, the rules governing unpublished 

opinions.

APPEAL

III. RETROACTIVE APPLICATION OF THE PRA’S 2011 AMENDMENT IS NOT PREVENTED 

BY THE LAW OF THE CASE DOCTRINE OR ANY CONSTITUTIONAL PROVISION
No. 34599-8-III

Zink v. City of Mesa

25

The Zinks argue that for five additional reasons, the 2011 amendment to the PRA 

cannot apply to their claim. They argue first that under the “law of the case” doctrine,

Zink III determined conclusively that the law in effect at the time their action was filed 

was controlling. 

In its “most common form,” the law of the case doctrine provides that “once there 

is an appellate holding enunciating a principle of law, that holding will be followed in 

subsequent stages of the same litigation.” Roberson v. Perez, 156 Wn.2d 33, 41, 123 

P.3d 844 (2005). The doctrine “applies only to questions decided,” so matters not 

discussed or otherwise involved in an appellate decision are not barred by the doctrine 

from consideration in a subsequent appeal of the same litigation. Philip A. Trautman, 

Claim and Issue Preclusion in Civil Litigation in Washington, 60 WASH. L. REV. 805, 

811 (1985). 

Nothing the Zinks point to in this court’s opinion in Zink III established law of the 

case on the issue of the retroactive or prospective operation of SHB 1899. The fact that

we noted the bill’s passage in a footnote is not a ruling on its application. Our consistent 

citations to the former version of the PRA in Zink III is unsurprising and inconsequential; 

in addressing a claim under the PRA, we will rely on the statutes in effect at the time the 

action was commenced unless a party demonstrates a basis for retroactively applying a 

later statute. The city did so here, pointing to the remedial character of the 2011 

amendment.
No. 34599-8-III

Zink v. City of Mesa

26

The issue of whether SHB 1899 should apply retroactively was not presented in 

Zink III, as demonstrated by the city’s postdecision motion requesting that we “consider,” 

not “reconsider” whether it applied retroactively. E.g., CP at 200, 207. The fact that this 

court summarily denied the city’s postdecision motion was not a rejection of the city’s

argument; as a matter of law, such an issue can and should be addressed by the trial court 

on remand. See Franklin County Sheriff’s Office v. Parmelee, 175 Wn.2d 476, 481, 285 

P.3d 67 (2012) (retroactivity of a legislative change to the PRA enacted while review was 

pending should not have been taken up by the appellate court; it was an issue for the trial 

court following remand).

The Zinks also argue that retroactively applying SHB 1899 violates rights 

protected by the ex post facto, equal protection, and due process clauses of the United 

States and Washington Constitutions. 

The federal and state ex post facto clauses pertain exclusively to penal statutes.

Kansas v. Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); 

Forster v. Pierce County, 99 Wn. App. 168, 178, 991 P.2d 687 (2000). “If a law is not 

‘criminal’ or ‘punitive,’ it can be applied to any conduct, either past or future, without 

violating the ex post facto clause.” Forster, 99 Wn. App. at 178. RCW 42.56.550 is not 

a penal statute.

The Zinks’ equal protection argument is based on their observation that other 

cases filed and decided before and after their action applied the provisions of the PRA as 
No. 34599-8-III

Zink v. City of Mesa

27

it existed before its amendment in 2011. The equal protection clauses of the federal and 

state constitutions require that the law must ensure that “‘persons similarly situated with 

respect to the legitimate purpose of the law must receive like treatment.’” State v. 

Johnson, 194 Wn. App. 304, 307, 374 P.3d 1206 (2016) (quoting State v. Coria, 120 

Wn.2d 156, 169, 839 P.2d 890 (1992)). They are not a guarantee that parties will always 

raise and effectively argue the law, or that courts will always correctly apply it. The 

Zinks make no argument that, as amended in 2011, the PRA fails to ensure that persons 

similarly situated with respect to the legitimate purpose of the law will receive like 

treatment.12

Turning to the Zinks’ allegation of a violation of due process, “‘A retroactive law 

violates due process when it deprives an individual of a vested right.’” State v. Varga, 

151 Wn.2d 179, 195, 86 P.3d 139 (2004) (quoting State v. Shultz, 138 Wn.2d 638, 646, 

980 P.2d 1265 (1999)). As earlier explained, the Zinks did not have a vested right to any 

penalty range or amount.

Finally, the Zinks argue that the trial court’s retroactive application of SHB 1899 

violated the separation of powers doctrine. They rely on inapposite case law holding that 

 

12 As the city points out, there are several cases wherein Washington courts have 

applied SHB 1899 retroactively to cases pending prior to its effective date. See West v. 

Thurston County, 168 Wn. App. 162, 168, 187-88, 275 P.3d 1200 (2012) (action filed in 

2007); Forbes v. City of Gold Bar, 171 Wn. App. 857, 859-60, 864, 288 P.3d 384 (2012) 

(action filed in 2010); Bricker, 164 Wn. App. at 19, 21 n.3 (action filed in 2008).
No. 34599-8-III

Zink v. City of Mesa

28

the legislature cannot retroactively change a statute in contravention of an existing 

judicial construction of that statute. Br. of Appellant at 48 (citing, e.g., Am. Disc. Corp. 

v. Shepherd, 129 Wn. App. 345, 354, 120 P.3d 96 (2005), aff’d, 160 Wn.2d 93, 156 P.3d 

858 (2007)). SHB 1899 did not seek to retroactively change judicially-construed law; it 

changed remedies that could be ordered in the future. No separation of powers issue is 

presented.

CROSS APPEAL

IV. THE TRIAL COURT DID NOT ERR IN TREATING A JUNE 2003 MEMORANDUM 

PROVIDING LEGAL GUIDANCE AS RAISING A “RED FLAG,” JUSTIFYING INCREASED

PENALTIES FOR WITHHOLDING THEREAFTER

In five public records provided to the Zinks, relied on for violations 6, 8, 15, 16, 

and 22, the city redacted name and mailing address information for certain individuals. 

On June 23, 2003, its clerk/treasurer obtained guidance from the Municipal Research and 

Services Center (MRSC) on the subject of “[d]isclosure of names and/or addresses of 

people identified in city attorney invoices and in invoices from company with whom city 

contracts for building department services.” CP at 1062. The trial court treated the 

memorandum as raising a red flag as to the propriety of the city’s redactions in the five 

public records. In its worksheet for violation 6, for example, the trial court wrote,

“Initially, the redactions were in good faith, but in June, 2003 the City was advised that 

the names and addresses should not be generally redacted. Yet, the City did not go back 

and revisit its decision.” CP at 2442. The trial court increased its preliminary daily 
No. 34599-8-III

Zink v. City of Mesa

29

penalty rate for these violations from $5 to $20 following the city’s receipt of the MRSC 

memorandum. 

While the MRSC memorandum was responding to a question about names and 

addresses of individuals identified in two specific situations, it provided a general

overview, including by identifying the situations when name and address information 

could be withheld by a city. It included the following advice:

The general statute identifying most exemptions from public disclosure is 

RCW 42.17.310(1). There is no exemption in RCW 42.17.310(1) 

applicable to a city that specifically exempts names of individuals, except 

for RCW 42.17.310(1)(e), which exempts “Information revealing the 

identity of persons who are witnesses to or victims of crime or who file 

complaints with investigative, law enforcement, or penology agencies, 

other than the public disclosure commission, if disclosure would endanger

any person’s life, physical safety, or property.” Also, there may be 

instances where, for example, names of witnesses may be deleted from 

investigative records, under RCW 42.17.310(l)(d), to protect their “right to 

privacy.” (RCW 42.17.255 states that a person’s right to privacy is 

considered violated “only if disclosure of information about the person: (l) 

Would be highly offensive to a reasonable person, and (2) is not of 

legitimate concern to the public.”)

There is in RCW 42.17.260(9) a prohibition on disclosure of “lists of 

individuals requested for commercial purposes,” but that provision does 

not apply to this request for disclosure.

As to addresses, the only public disclosure exemption that applies to 

addresses of citizens is RCW 42.17.310(1)(v), which exempts “residential 

addresses and residential telephone numbers of the customers of a public 

utility contained in the records or lists held by the public utility of which 

they are customers.” That exemption does not apply here. (Note that, for 

public employees, there is an exemption in RCW 42.17.310(1)(u) for 

“residential addresses or residential telephone numbers of employees or 

volunteers of a public agency which are held by any public agency in 
No. 34599-8-III

Zink v. City of Mesa

30

personnel records, public employment related records, or volunteer rosters, 

or are included in any mailing list of employees or volunteers of any public 

agency.”) 

CP at 1062-63. 

The city argues that the MRSC memorandum was answering a narrow question 

about redactions in attorney invoices and did not put it on notice that the redactions in the 

five records at issue were improper. The city does not dispute that the redactions in the 

five records were improper. The record it provides on review is insufficient for us to 

determine independently whether it ever had a reasonable basis for believing they were 

proper.

Even accepting the city’s characterization of its conduct in its brief on appeal, 

however, we can affirm the trial court. According to the city’s brief, violations 6, 15 and 

16 were based on its misunderstanding that an exemption for utility customers was not 

limited to utility records, but was broad enough to include personally identifying 

information in nonutility records about an individual who happened to be a utility 

customer.

13 Its brief describes violation 8 as based on its belief that it could redact post 

office addresses of two of its council members based on the PRA exemption for the 

 

13 The exemption, presently codified at RCW 42.56.330(2), generally exempts 

“[t]he addresses, telephone numbers, electronic contact information, and customerspecific utility usage and billing information in increments less than a billing cycle of the 

customers of a public utility contained in the records or lists held by the public utility of 

which they are customers.”
No. 34599-8-III

Zink v. City of Mesa

31

residential addresses of agency employees.14 Violation 22 involved the redaction of the 

identification of a resident who filed a complaint with the city that the city argues on 

appeal might have been based on the misunderstanding of the utility record exemption or 

a misunderstanding of an investigative record exemption. Since the MSRC memorandum 

did not deal directly with any of the five records at issue, and the memorandum affirmed 

the existence of exemptions for residential address information contained in utility, 

employment, and investigative records, the city argues it was not placed on notice that the 

redactions in the five records were improper. 

Because the trial court announced in its oral ruling in May 2016 that it would 

increase penalties for the redactions for periods after the city received the MRSC 

memorandum, the city had the opportunity to make all of these arguments to the trial 

court. At the time of presentment and entry of its findings and conclusions, the trial court 

stood by its oral ruling:

[T]wo things are clear to me. That, one, if the staff—the memo referred 

only to residential addresses, and P.O. boxes would not be included in that. 

Number two, that memo pointed out sufficient number of very specific and 

erroneous assertions of the exemption and redactions that it should have 

caused the city to reexamine this whole area of the redaction of addresses. 

And had it done so, it would have found all of its errors. And ultimately we 

know that the redactions of all of these addresses were in error. And so 

it’s—I’m going [to] stand by my original ruling, because it was part of a 

pattern of stubbornness on the part of the city, even faced with that memo 

 

14 The exemption, presently codified at RCW 42.56.250(3), includes the 

“[r]esidential addresses” of agency employees that are held by an agency in personnel 

records, public employment related records or mailing lists of employees. 
No. 34599-8-III 

Zink v. City of Mesa 

to not go back and reexamine the whole thing. So it was a more global 

view from my point of view rather than on each individual type of 

exemption. 

RP (June 29, 2016) at 33-34. 

The city's argument that an increase from a $5 per-day penalty to a $20 per-day 

penalty was an abuse of discretion under these circumstances is not well taken. If the 

MRSC memorandum had directly addressed the impropriety of the city's redactions in 

the five documents, the appropriate increase to the preliminary penalty would presumably 

have been to $100 per day. Given that the memorandum raised a red flag that the city 

might be too aggressively redacting information that is subject to only a few, narrow 

exemptions, the increase of the preliminary penalty to $20 per day was well within the 

trial court's discretion. 

The Zinks request costs under RAP 14.1. Because costs are recoverable only by a 

substantially prevailing party and neither party has substantially prevailed in this appeal, 

the request is denied. 

Affirmed. 

WE CONCUR: 

Lawrence-Berrey, C.J. Korsmo, J .tJ 

32