Federal Way man has won thousands in public records lawsuits

ROB TUCKER; rob.tucker@thenewstribune.com
Last updated: April 21st, 2008 06:18 AM (PDT)

The city must pay David Koenig penalties and attorney fees, Judge Susan Serko ruled in Pierce County Superior Court. The judge’s written order is not yet available, but she decided on the penalties April 11, according to attorneys on both sides.

Koenig, a construction worker, has a handful of other claims pending against Lakewood. He has made a practice of fighting for public records around the Puget Sound ever since documents related to the sexual assault of his daughter were kept from him in the mid-1990s.

He’s had considerable success, such as:

 • Buckley paid him and his attorney, William Crittenden, about $22,700. The case, resolved last year, involved records pertaining to the actions of a King County sheriff’s deputy while off duty in Buckley.

 • Tukwila paid them $27,000. Koenig had requested records in connection with a Tukwila police officer who kicked a man in the groin during the World Trade Organization protests in Seattle in 1999. This case also was resolved last year.

 • The case involving Koenig’s daughter reached the state Supreme Court and resulted in the City of Des Moines paying him and his attorney $83,500.

Koenig said he has cleared from $30,000 to $50,000 after attorney fees in his various records cases. He said he’s using the funds to support similar cases.

The South King County man, who especially keeps his eyes open for police misconduct, said he’s simply trying to get public agencies to respond properly under the law.

“I’m not trying to bring up issues where they don’t exist,” he said.

Some public officials, however, question whether Koenig and his attorney have started a cottage industry. Buckley Mayor Pat Johnson said she’s concerned they are taking advantage of small governments that struggle to answer public records requests.

“These guys are making a career out of this,” Johnson said.

In his actions against Lakewood, Koenig is not taking on a small government but rather the second-largest city in Pierce County.

City Attorney Heidi Wachter said she didn’t ignore Koenig’s request for records, but her office made an error by denying him some of what he asked for.

“We’ll pay our fine,” she said. “We have no interest in fighting about public disclosure.”

Lakewood will pay about $12,000 in penalties and $28,500 in attorney fees when the judge issues the final order, attorneys on both sides said. The judge imposed a fine for each of the 636 days she determined the city improperly withheld the records.

Koenig said the pursuit of complete documents is his way of pushing governments to comply with state public records laws.

“To me,” he said about Lakewood officials, “they were lying or didn’t have enough brains to walk upright.”

Crittenden, his Seattle-based attorney, had argued that Lakewood “engaged in a pattern of willful violations” of public records laws. However, Judge Serko ruled that Lakewood’s actions didn’t rise to the willful level, so Koenig didn’t get all of the $120,000 he was seeking, his lawyer said.

The case history dates to November 2004, when Koenig asked Lakewood to provide investigative records about a Seattle cop who was arrested in Lakewood.

Koenig said he read about it in The News Tribune, requested the police report and was given a version with parts blacked out a month later. He argued with the city over what information was left out of the copy he was given; the city eventually did let him read the full report at City Hall.

Lakewood police had arrested Daniel Espinoza Jr. during an October 2004 sting. City prosecutors charged him with a misdemeanor, patronizing a prostitute.

The municipal court judge agreed with a prosecutor’s recommendation and issued a stipulated order of continuance. In other words, if Espinoza had no criminal violations in the next year, the case would be dismissed. In November 2005, it was dismissed.

Wachter said the city judge treated the officer like other first-time prostitution offenders.

In December 2005, Koenig renewed and expanded his request for all records in the case, which the city denied.

Wachter later explained that her office made an error and that prosecutors believed Koenig wanted only prosecutor’s records, not those and court records, too.

Koenig sued the city in December 2006. He said in his lawsuit that the public has the right to know whether the officer’s conduct was properly investigated and whether prosecutors and the judge acted properly in dismissing the charges.

The city eventually gave up the records after more arguing back and forth.

Serko ruled the city was in compliance in September 2007. But she also determined the city should have understood Koenig’s request when he first made it nearly two years earlier and should have released the documents then, both attorneys said.

The case that first motivated Koenig to start filing records requests involved the sexual assault of his 10-year-old daughter. About a dozen years ago, he said, he sought police records concerning that case. The girl, identified as “Jane Doe” in court documents, was living with her mother and stepfather, who was the suspect, according to The Associated Press.

The City of Des Moines denied Koenig’s records request because he identified Jane Doe by her real name. The city said if it released the records, it would have identified her as a child victim of sexual assault, which is illegal.

The state Supreme Court, in a 5-4 ruling two years ago, said the records were open to the public. The court said as long as identifying information about the child victim is blacked out, agencies cannot withhold sexually explicit descriptions.

Koenig said he currently has about 10 public records requests pending with various government agencies, including Lakewood.

Koenig’s other Lakewood requests involve two cases in which police officers were arrested in the city. One was a Lakewood officer and the other was a Tacoma cop. One was for patronizing a prostitute, the other for domestic violence, and both men received continuances, similar to the Espinoza case.

A third request involves an auto accident that Lakewood police were called to investigate; a Fife police officer’s patrol car had struck a pedestrian in Fife.

All three requests were filed last year.

Wachter said the city plans to sue Koenig to get a ruling as soon as possible on whether the city is properly responding to his requests. Such a ruling would shorten the time that penalties might be imposed if the city has erred, she said.

Crittenden, Koenig’s attorney, discouraged that approach.

“These people should stop worrying about David Koenig and get their house in order,” he said.

Rob Tucker: 253-597-8374

Originally published: April 21st, 2008 01:21 AM (PDT)