Withholding public records from a fired police officer could cost the City of Tacoma $1.77 million, according a tough ruling issued this week in Pierce County Superior Court.
The decision handed down Feb. 6 by Judge Helen Whitener states that the city wrongly withheld 546 pages of records from former police officer David O’Dea for more than a year. The penalties, levied at the rate of $10 per day for each record, appear to rank among the stiffest in state history.
“I’ve never seen one over $200,000,” said Brett Purtzer, the attorney representing O’Dea in the lawsuit. “And there’s more to come.”
Toby Nixon, president of the Washington Coalition for Open Government and an expert in public records issues, said Friday that he and other coalition members couldn’t recall a bigger legal penalty for nondisclosure.
“Nobody could think of a larger award,” he said.
Nixon noted that state law sets penalties for nondisclosure at a range between 0 and $100 per day for withholding. Whitener’s ruling against Tacoma was calculated at the low end.
“She did the calculation correctly: per record, per day,” Nixon said. “Most judges seem to do it backward — first get a number in mind of what the case is worth, then divide by days and records. That’s how you get numbers like 25 or 50 cents per record per day, which are completely unreasonable.”
O’Dea, fired in 2017, has filed a lawsuit alleging wrongful termination. A 22-year veteran of the department, he contends that he was terminated because he didn’t shoot to kill a man who had assaulted police officers.
That lawsuit remains active. The public-records case is a separate action, filed previously by O’Dea in an effort to obtain records associated with his firing.
Attorneys for the city argued that staff did not receive or see public records requests originally filed by O’Dea in March 2017. O’Dea filed the lawsuit alleging nondisclosure in November 2017, reiterating and documenting his original requests.
At that point, the city continued to withhold the records, which compounded the problem, according to Whitener’s decision.
“Instead of verifying if the records were received, the City prepared to defend the allegations in the complaint,” the ruling states. “This course of action resulted in additional months of the requests not being complied with and was at a minimum negligent as it should have been the first question answered upon receiving the complaint.”
In calculating penalties, Whitener added that the amount was necessary “to deter future misconduct” by the city.
The city hasn’t issued a legal response to the decision, which could be appealed. Asked for comment, city spokeswoman Maria Lee offered a brief statement:
“The City has worked hard to create a transparent and responsive public disclosure process, and takes its obligations under the Public Records Act seriously. The City respectfully disagrees with the court’s analysis in this case and is in the process of evaluating its next steps.”
The incident that led to O’Dea’s firing dates to 2016. It was initially reported as a road rage incident. A 37-year-old man surrounded by police officers attempted to flee and rammed a patrol car.
O’Dea fired gunshots at the car, not the driver, according to records associated with the wrongful-termination lawsuit. The city conducted a 10-month internal investigation. Police department leaders concluded that O’Dea failed to follow department procedures regarding the use of deadly force.
After his firing, O’Dea sought records and reports associated with the incident and the internal investigation.
“That was the whole point,” Purtzer said. “He needed this stuff to defend himself in that IA investigation and they just simply never produced it.”
Purtzer added that the city still hasn’t produced some of the records O’Dea seeks and suggested that could lead to additional penalties for nondisclosure.
“It’s still ongoing,” he said. “Still pending.”