FILED
AUGUST 25, 2026
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
TERRY COUSINS, ) No. 41279-2-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
STATE OF WASHINGTON and )
DEPARTMENT OF CORRECTIONS, )
)
Appellants. )
LAWRENCE-BERREY, J. — The Department of Corrections (DOC) appeals after the
trial court awarded Terry Cousins over $1,000,000 in Public Records Act (PRA), chapter
42.56 RCW, penalties and over $200,000 in attorney fees and costs.
We conclude that the trial court erred when it included duplicated records earlier
produced timely and nonresponsive records in its finding that DOC unreasonably delayed
producing 434 records. The evidence supports a finding that DOC unreasonably delayed
producing only 69 records.
We affirm the trial court’s determination that DOC violated the PRA and its
finding of the number of days DOC unreasonably delayed producing records. We reverse
its penalty award and its attorney fee/cost award and remand for a new determination of
those awards.
No. 41279-2-III
Cousins v. DOC
FACTS
On April 11, 2016, Terry Cousins, through counsel, sent a preservation letter to
DOC for all documents surrounding the confinement and death of her sister, Renee Field,
who had been in DOC’s custody. On July 21, 2016, Cousins made a public records
request to DOC for “‘any and all records regarding Renee A. Field . . . from January 1,
2014, to present.’” Clerk’s Papers (CP) at 1978. Due to the breadth of the request and
the number of places within DOC where responsive records might be located, DOC
realized early on that the record request would be complex and numerous people would
be involved in responding to the request.
DOC promptly acknowledged Cousins’ request for records, and, on October 28,
2016, it notified her that the first installment of records was available. Between
November 22, 2016 (after Cousins paid for the first installment) and January 17, 2019
(when DOC notified Cousins that all responsive records had been provided), DOC sent
Cousins seven records installments.
Cousins reviewed the seventh installment, and, in late January 2019, e-mailed her
contact at DOC, Sheri Izatt, of her belief that several records were missing, and described
with some particularity what those records were. Izatt provided less than clear assurances
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Cousins v. DOC
to Cousins that she would search for those records. Over the next several months
Cousins left voicemails for Izatt, but Izatt had left DOC without informing Cousins.
In late October 2019, Izatt’s replacement, Paula Terrell, received one of Cousins’
voicemails and responded. Terrell mistakenly believed that Cousins’ attorney was the
proper requestor of the records and told Cousins she would not respond to her. Later,
Terrell mistakenly told Cousins that her records request “‘is and remains closed’” and
attached the cover letter from the seventh record’s installment. CP at 1982.
In her deposition, Terrell admitted that she should have reopened Cousin’s request
in November 2019. Because of Terrell’s mistakes, DOC did not produce the eighth
installment of records until October 1, 2020. DOC did not charge Cousins for the eighth
and subsequent installment of records.
On January 12, 2021, Cousins filed suit against DOC for violating the PRA,
seeking penalties and attorney fees. In her February 24, 2021, amended complaint,
Cousins acknowledged that all of the records DOC produced in the eighth, ninth, and
tenth installments were duplicates of earlier produced records. In August 2021, DOC
produced its seventeenth and final installment of records to Cousins.
DOC filed a motion to dismiss based on its contention that the one-year period to
file a PRA action had expired. It argued the date the one-year period commenced was
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Cousins v. DOC
January 17, 2019, when it informed Cousins that all records responsive to her request had
been produced. The trial court agreed and dismissed Cousins’ action. Our Supreme
Court reversed and remanded. Cousins v. State, 3 Wn.3d 19, 546 P.3d 415 (2024).
On remand, the trial court conducted a show cause hearing based on documents
only. DOC maintained that it did not violate the PRA and argued that its responses
through the seventh installment were timely. The parties and the trial court focused on
the lengthy delay between the seventh and eighth installments. Cousins counted the
number of records produced from the eighth to the seventeenth installments and argued
that the number of records unreasonably delayed totaled 434, but she admitted she had
not deducted the duplicated records.
DOC then went through each installment, one at a time, and identified which of
the 434 records were nonduplicative documents responsive to Cousins’ public records
request. Based on its review, DOC concluded that only 69 of the 434 records were
nonduplicative responsive records.
Cousins did not identify any error in DOC’s review. Instead of disputing DOC’s
conclusion, Cousins argued that duplicated records could be counted in a PRA penalty
and stated (without specifying any specific record) that some duplicates might have been
less redacted.
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Cousins v. DOC
The trial court found that DOC produced 434 records to Cousins after the seventh
installment and the appropriate penalty period was 623 days, which spanned from
January 17, 2019 (the date of the seventh installment) until October 1, 2020 (the date of
the eighth installment). The trial court concluded that a per diem penalty was appropriate
once a violation of the PRA had been found for an unreasonable delay in producing
records.
With respect to the per diem amount, the court found “more [Yousoufian1]
mitigating factors than aggravating factors” because DOC “did not act dishonestly,
intentionally, or in bad faith.” CP at 1985. It described DOC’s actions “in line with the
‘big-whiff’ type of case.” CP at 1985. The court used a $4 per diem penalty and, based
on the number of records (434) and the number of days of unreasonable delay (623), it
calculated a total penalty of $1,081,528. It later awarded Cousins reasonable attorney
fees and litigation costs in the amounts of $199,482.50 and $8,165.79, respectively.
DOC appeals to this court.
1
Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).
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Cousins v. DOC
ANALYSIS
STANDARD OF REVIEW
“We review de novo an order on a motion to show cause when, as here, the record
‘consists entirely of written materials and the trial court has not seen or heard testimony
requiring it to assess the credibility or competency of a witness, weigh evidence, or
reconcile conflicting evidence.’” 2 C.S.A. v. Bellevue Sch. Dist. No. 405, 32 Wn. App. 2d
544, 556, 557 P.3d 268 (2024) (quoting Gronquist v. Dep’t of Corr., 159 Wn. App. 576,
590, 247 P.3d 436 (2011)), review denied, 4 Wn.3d 1019, 566 P.3d 92 (2025). “We also
review de novo a trial court’s PRA determination ‘where the record consists only of
affidavits, memoranda of law, and other documentary evidence’ because we ‘stand[ ] in
the same position as the trial court.’” Id. (alteration in original) (quoting Progressive
Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994)
(plurality opinion)).
2
Cousins’ argument that some of the duplicated records might have been less redacted is speculative, and does not require us to reconcile conflicting evidence. Gardner v. Seymour, 27 Wn.2d 802, 808, 180 P.2d 564 (1947) (the existence of a disputed fact cannot rest on guess, speculation, or conjecture).
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TWO TYPES OF PRA ACTIONS
The PRA is a strongly worded mandate for broad disclosure of public records and
requires all state and local agencies to disclose any public record upon request unless the
record falls within certain specific exemptions. Id. at 557. We liberally construe the
PRA to promote the public interest in “free and open examination of public records.” Id.;
RCW 42.56.550(3). The PRA is meant to ensure that the public remains informed so that
it may maintain control over its government. Freedom Found. v. Dep’t of Soc. & Health
Servs., 9 Wn. App. 2d 654, 663, 445 P.3d 971 (2019).
If a government agency receives a request for public records, it must respond
within five business days by (1) providing the records, (2) denying the request, or
(3) providing a reasonable estimate of the time within which to respond to the request.
Andrews v. Wash. State Patrol, 183 Wn. App. 644, 651, 334 P.3d 94 (2014). The agency
must provide “the fullest assistance to inquirers and the most timely possible action on
requests for information.” RCW 42.56.100. An agency may produce records in
installments but must make them available with reasonable diligence. C.S.A., 32 Wn.
App. 2d at 558.
The PRA provides a cause of action for two types of violations: (1) when an
agency wrongfully denies an opportunity to inspect or copy a public record, or (2) when
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Cousins v. DOC
an agency has not made a reasonable estimate of the time required to respond to the
request. Andrews, 183 Wn. App. at 651 (citing RCW 42.56.550(1), (2)). It is within the
discretion of the trial court to grant a person up to $100 per day for each day they were
denied the right to inspect or copy the record. RCW 42.56.550(4).
DOC COMMITTED A PRA VIOLATION
The parties dispute what type of PRA violation the trial court found. The
confusion is understandable. The trial court found that DOC violated the PRA by
“unreasonably delaying” its response and “failing to provide a reasonable estimate of
time.” CP at 1984. But in assessing the PRA penalty, it relied only on the first type, an
unreasonable delay in responding.
DOC argues that if the trial court found an unreasonable delay in responding, the
court erred by imposing penalties without finding it had denied Cousins the right to
inspect or copy records. We disagree. We have repeatedly explained that an
unreasonable delay in responding to a records request can ripen into the first type of a
PRA violation—a constructive denial of an opportunity to inspect or copy records.
Pilloud v. Emp’t Sec. Dep’t, 33 Wn. App. 2d 644, 654-55, 566 P.3d 124, review denied,
5 Wn.3d 1004, 574 P.3d 574 (2025); C.S.A., 32 Wn. App. 2d at 558; Cantu v. Yakima
Sch. Dist. No. 7, 23 Wn. App. 2d 57, 88, 94, 514 P.3d 661 (2022).
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Cousins v. DOC
Whether an agency constructively denied an opportunity to inspect or copy
records must be determined from the viewpoint of an objective observer. Pilloud,
33 Wn. App. 2d at 655. Here, the trial court noted a 623-day delay between DOC’s
production of the seventh and eighth record installments. The length of this delay is
undisputed. From an objective observer, a 623-day delay is a constructive delay of an
opportunity to inspect or copy records. We affirm the trial court’s determination that
DOC committed a PRA violation.
ONLY UNTIMELY PRODUCED RECORDS RESPONSIVE TO A PRA REQUEST ARE
SUBJECT TO A PENALTY
DOC argues the trial court erred by finding it had untimely produced 434 records.
It argues that duplicated records earlier produced timely and nonresponsive records
should not be included in a penalty assessment. We agree.
As noted previously, we liberally construe the PRA to promote the public interest
in the free and open examination of public records. RCW 42.56.550(3). Sometimes,
such as here, an agency may overproduce records to ensure an open examination of
public records. This over production might occur through producing duplicates of earlier
produced records or by producing records outside the scope of a person’s records request.
Were we to penalize overproduction, an agency would have a motive to err on the side of
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Cousins v. DOC
nondisclosure. This would frustrate the purpose of the PRA. We decline to give the PRA
such a construction.
Cousins argues that sophisticated agencies, such as DOC, have the technology to
ensure that duplicates are not produced. Her argument implies that some agencies lack
this technology. We refuse to provide two standards—one for large agencies and one for
all others. Moreover, were we to impose a higher standard for agencies with the latest
technologies, this would disincentivize agencies from embracing technology that could
assist in their records production.
We conclude that the trial court erred in counting duplicated records earlier
produced timely and nonresponsive records in its PRA penalty. Here, the evidence
establishes that DOC unreasonably delayed producing only 69 records. We remand for
the trial court to use this number in assessing a PRA penalty.3
3
There are two reasons we refuse to calculate an appropriate PRA penalty using the correct number of days and the correct number of records and the trial court’s $4 per diem figure. First, we recognize that trial courts are given broad discretion in determining the appropriate PRA penalty. Yousoufian, 168 Wn.2d at 468. Second, the trial court’s decision to impose a $4 per diem penalty might have been impacted by the number of records it found were not timely produced. That is, if the trial court believed that 434 records were not timely produced rather than 69, DOC’s big whiff might be smaller than a $4 per diem penalty warrants.
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No. 41279-2-III
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AWARD OF ATTORNEY FEES AND COSTS BELOW
DOC argues the trial court erred by failing to enter findings concerning its
objections to Cousins’ request for attorney fees and costs. We decline to review this
issue because we conclude that the attorney fee and cost award must be vacated due to
our reversing the trial court’s penalty award.
We review a trial court’s award of attorney fees for an abuse of discretion.
Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 81, 272 P.3d 827 (2012). “A trial court
initially determines attorney fees and costs using the ‘lodestar’ calculation, multiplying
the total number of hours reasonably expended in the litigation by the reasonable hourly
rate.” Id. “The court must limit the lodestar to hours reasonably expended, and should
therefore discount hours spent on unsuccessful claims, duplicated effort, or otherwise
unproductive time.” Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675
P.2d 193 (1983) (plurality opinion). “Once the lodestar has been calculated, the court
may adjust the fee to reflect factors not considered yet.” Clausen, 174 Wn.2d at 81. A
fee award may be adjusted downward if the lodestar figure greatly exceeds the amount in
controversy. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 150-53, 859 P.2d 1210 (1993).
The party requesting the adjustment has the burden to show a deviation is justified.
Clausen, 174 Wn.2d at 81.
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Cousins v. DOC
Here, the trial court might review the 69 nonduplicative responsive records and
conclude that many of them provided no new substantive information to Cousins. If so,
the purpose of the PRA might not be furthered by a large penalty award, especially given
the trial court’s uncontested finding that DOC whiffed rather than engaged in
misconduct. If the trial court was to assess a much smaller penalty, it might impose a
downward deviation on its lodestar attorney fee calculation. For this reason, we vacate
its attorney fee and cost award.4
REMAND TO SAME JUDGE
DOC asks that we remand this matter to a different judge. It argues the currently
assigned judge has already prejudged the appropriate penalty and that assignment to a
new judge is warranted for assessment of an appropriate penalty.
We decline DOC’s request. Here, Cousins requested a per diem penalty of
between $10 and $60, yet the assigned judge imposed a $4 per diem penalty. While we
think the judge’s penalty was excessive—given the purpose of the PRA and the
4
DOC also argues the trial court abused its discretion by imposing a penalty of over $1,000,000 and erred in failing to sufficiently detail its findings of the Yousoufian factors. In light of our reversal of the trial court’s penalty and in light of our comments above, we deem it unnecessary to address either argument.
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undisputed finding that DOC’s conduct was akin to a big-whiff—we are confident it can
appropriately assess a penalty that furthers the purposes of the PRA.
ATTORNEY FEES ON APPEAL
Cousins requests reasonable attorney fees on appeal and cites RCW 42.56.550(4)
in support of her request. RCW 42.56.550(4) mandates an award of “all costs, including
reasonable attorney fees” to a party who prevails in a PRA action.
Our review of the briefing shows there were two central issues on appeal: whether
the trial court properly determined DOC violated the PRA and the appropriate PRA
penalty. Most arguments of the parties focused on the second central issue, an issue on
which DOC prevailed.
In our view, a proper assessment of “reasonable” attorney fees cannot be made
without also assessing the value of the information in the 69 records. This is especially
true given Cousins’ acknowledgement in her amended complaint that the records
produced in the eighth, ninth, and tenth installments were all duplicates.
By statute, Cousins is entitled to all of her “reasonable” attorney fees, but
reasonable fees do not include fees incurred on unsuccessful claims. In addition, a
lodestar award can be reduced by the value of the information in the 69 nonduplicative
responsive records. See Scott Fetzer Co., 122 Wn.2d at 150-53 (lodestar fees may be
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Cousins v. DOC
adjusted downward based on the value of the claim). For these reasons, we authorize the
trial court to award Cousins up to 50 percent of her fees on appeal, depending on the
value of the information contained in the 69 nonduplicative responsive records.
We affirm the trial court’s determination that DOC violated the PRA and its
finding of the number of days DOC unreasonably delayed producing records. We reverse
its penalty award and its attorney fee/cost award and remand for a new determination of
those awards.
Lawrence-Berrey, J.
WE CONCUR:
Staab, C.J.
Cooney, J.
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