Former foster children awarded record payout in public-records lawsuit

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by SUSANNAH FRAME / KING 5 News

Bio | Email | Follow: @SFrameK5

KING5.com

Posted on November 5, 2009 at 12:10 AM

Updated Wednesday, Oct 30 at 8:40 AM

SEATTLE - Three girls abused for years by their foster father have just won a landmark payout from the state of Washington.

The Department of Social and Health Services (DSHS) has agreed to pay $525,000 to the girls for keeping public records from them.

This is the most money DSHS has ever paid in a public records lawsuit.

Estera Tamas, Ruth Tamas and their foster sister Monica endured years of abuse at the hands of their foster dad, Enrique Fabregas, in Kirkland and Redmond.
As complaints rolled in about him to Child Protective Services, no one believed the girls.

DSHS continued to license him as a foster parent. The girls were left in his care.

Eventually Fabregas was arrested and convicted of sex crimes against the girls.

"For three years I was tortured. He hated me and made that clear on a daily basis,” said Ruth Tamas at Fabregas’ sentencing in August of 2007.

"I have flashbacks of Enrico looking at me in the shower, him throwing me down the stairs, of him introducing me to alcohol and drugs for the first time," said Estera Tamas.

The girls sued DSHS for allegedly ignoring dozens of warnings that came in about Fabregas. They also asked the agency for all their records on the case under the state’s Public Records Act.

After thousands of pages of documentation came in, their attorneys suspected documents were missing. The foster sisters then sued the state again; this time for alleged violations of the open records law.

"They withheld documents, they lost documents, and when they were obligated to turn them over they made the decision that they were going to hide these documents from these three girls," said plaintiff attorney David P. Moody of Hagens Berman Sobol Shapiro law firm.

King County Superior Court Judge Timothy Bradshaw issued two orders in which he agreed that DSHS "violated the Public Records Act" when "records were improperly withheld from (the plaintiffs)."

DSHS issued a statement to KING 5 denying there was anything purposeful about the delay in handing over records.

"DSHS did not intentionally withhold any records. Mistakes were made due to technical errors, confusion created in part by the staggered way in which the requester presented authorizations allowing release of his client's confidential information, and some delays in finding a few of the thousands of requested records. Once found, the records were given to the plaintiffs' attorney,” wrote Sherry Hill, a public information officer for DSHS.

The plaintiff attorneys say the dollar figure should send a message about how serious the Public Records Act should be taken in Washington state.

"DSHS is agreeing to pay more than a half of a million dollars in taxpayer money because they screwed up royally. I hope the public takes from this that they have rights. They’re entitled to their records,” said Moody.

“We hope that this settlement serves as a wakeup call, not only to DSHS but to the government as a whole that they work for the people, not the other way around," said plaintiff attorney Marty McLean.

The original lawsuit filed against DSHS in this case, which alleges the state should have protected the foster children from the abuse, is still making its way through federal court.

Enrique Fabregas has two more years left on his prison sentence.

 

Click here for court document (stipulated judgment and order of disburse funds)

 

DSHS statement on settlement:

-DSHS is fully committed to open government and compliance with the Public Records Act.

-A recent statewide audit on public disclosure performance conducted by the State Auditor's Office found that DSHS is a top performer, despite handling more than 24,000 public disclosure requests a year.

-The requests in this case were complex due to multiple laws involving confidentiality which required extensive redactions, the number of DSHS clients involved and the nature of the Children's Administration records requested.

-The requester in this case was an attorney asking for records on behalf of three clients.  He has received the thousands of records that were requested. More than 5,300 records, involving more than 10,000 pages, were disclosed.  The dispute was over 203 records that were disclosed late.  The Court determined the DSHS disclosure was complete as of July 1, 2008. 

-DSHS did not intentionally withhold any records.  Mistakes were made due to technical errors, confusion created in part by the staggered way in which the requester presented authorizations allowing release of his client's confidential information, and some delays in finding a few of the thousands of requested records.  Once found, the records were given to the plaintiffs' attorney.

-Washington's Public Records Act is very strict, and when a court finds any violation, including a delay in providing records, an agency can be held liable even if the delay was not intentional. 

-Three plaintiffs will receive payments of $175,000 each, inclusive of penalties and attorneys' fees.  While this award is not a state record, DSHS takes it very seriously. 

-The money comes from DSHS program funds. 

-The settlement avoids further increases in the award of attorneys' fees and costs to which requestors are automatically entitled, even if one page of a record is missed.

-To mitigate the risks of public disclosure penalties, DSHS is working on improvements to its public records process to include:

  • Implementing a centralized records request tracking system;
  • Training staff on records retention and management, and developing tools to aid the search and production of electronic records;
  • Centralizing records request intake; and,
  • Centralizing the public disclosure staff to ensure accountability.

Sherry Hill, M.S.
Communications Director, Children's Administration Public Affairs, Department of Social and Health Services

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