NOTICE: SLIP OPINION (not the court’s final written ...

[Pages:53]NOTICE: SLIP OPINION (not the court's final written decision)

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/FIWEv For the current opinion, go to . filed for record

X IN CLERKS OFFICE X

at&y? .on

8UFIS?E COURT.8XKIE CF VMSHBierOM

TE

201

Susan L. Carlson Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

WASHINGTON PUBLIC EMPLOYEES

ASSOCIATION,UFCW LOCAL 365,a labor organization, and PROFESSIONAL & TECHNICAL EMPLOYEES LOCAL 17, a labor organization.

Respondents,

V.

WASHINGTON STATE CENTER FOR

CHILDHOOD DEAFNESS & HEARING LOSS, Respondent,

EVERGREEN FREEDOM FOUNDATION d/b/a/

FREEDOM FOUNDATION,

Petitioner.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS,LOCAL 76,a labor organization, and UNITED ASSOCIATION, LOCAL 32, a labor organization.

Respondents,

V.

STATE OF WASHINGTON DEPARTMENT OF

LABOR & INDUSTRIES, Respondent,

EVERGREEN FREEDOM FOUNDATION d/b/a

FREEDOM FOUNDATION,

Petitioner.

NO. 95262-1 EN BANC

Filed OCT 2 4 2019

For the current opinion, go to . WA Pub. Emps. Ass'n et al. v. Evergreen Freedom Found.,95262-1

TEAMSTERS LOCAL UNION NO. 117, a labor organization,

Respondent,

V.

STATE OF WASHINGTON;CHRISTOPHER LIU,in his capacity as DIRECTOR, DEPARTMENT OF ENTERPRISE SERVICES; and DICK MORGAN,in his capacity as SECRETARY,DEPARTMENT OF CORRECTIONS,

Respondents,

EVERGREEN FREEDOM FOUNDATION d/b/a

FREEDOM FOUNDATION,

Petitioner.

SERVICE EMPLOYEES INTERNATIONAL

UNION HEALTHCARE 1199NW,a labor organization,

Respondent,

V.

STATE OF WASHINGTON;DEPARTMENT OF SOCIAL AND HEALTH SERVICES,an agency of the State of Washington; and DEPARTMENT OF HEALTH,an agency ofthe State of Washington,

Respondents,

EVERGREEN FREEDOM FOUNDATION d/b/a

FREEDOM FOUNDATION,

Petitioner.

STEPHENS, J.--^This case requires us to decide whether state employees

have a protected privacy interest against disclosure ofpublic records containing their

birth dates associated with their names. We conclude that the Public Records Act

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For the current opinion, go to . WA Pub. Emps. Ass'n et al. v. Evergreen Freedom Found.,95262-1

(PRA), chapter 42.56 RCW, does not exempt these records from disclosure. Nor does Washington Constitution article I, section 7 preclude disclosure, given that names and birth dates are widely available in the public domain and that their disclosure here does not violate privacy rights. We reverse the CourtofAppeals and reinstate the superior court decision denying a permanent injunction.

FACTS AND PROCEDURAL HISTORY

In 2016,the Freedom Foundation(Foundation)sent PRA requests to several state agencies seeking disclosure of records for union-represented employees, including their full names,associated birth dates,and agency work e-mail addresses. Upon reviewing the Foundation's PRA requests,the agencies determined that all of the requested records were disclosable and indicated that, absent a court order,they intended to release the requested records.

Several unions^ filed motions for preliminary and permanent injunctions to

prevent disclosure of the requested records. The Thurston County Superior Court granted a temporary injunction as to most of the requested records but ultimately denied the Unions' motion to permanently enjoin release of state employee names, birth dates, and e-mail addresses. Order Denying Pis.' Mot. for Permanent Inj.,

^ The named plaintiff unions include Washington Public Employees Association,

United Food and Commercial Workers Local 365, and Professional and Technical Employees Local 17(collectively Unions).

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For the current opinion, go to . WA Pub. Emps. Ass'n et al. v. Evergreen Freedom Found.,95262-1

No. 16-2-01547-34 (Thurston County Super. Ct. Wash., July 29, 2016) at 3; Verbatim Report ofProceedings(July 29,2016)(VRP)at 20-21, 25. It concluded that no PRA exemption applied and that the Unions had not demonstrated grounds to permanently enjoin disclosure. VRP at 25.

On appeal,a Court ofAppeals commissioner granted a stay preventing release of the state employees' full names associated with their birth dates. Comm'r's Ruling, Wash. Fed. State Emps. v. State, No.49248-2-II(Wash. Ct. App. Aug. 16, 2016). A panel of the Court of Appeals thereafter reversed the superior court and held that Washington Constitution article I, section 7 creates a privacy interest against public disclosure of state employees' full names associated with their birth dates. Wash. Pub. Emps. Ass'n v. Wash. Ctr.for Childhood Deafness & Hearing Loss, 1 Wn.App.2d 225,229,404 P.3d 111(2017){WPEA). In light ofits holding, the court declined to consider the Unions' arguments premised on various statutory provisions. Id. at 229 & n.2.

We granted the Foundation's petition for review. 190 Wn.2d 1002 (2018). Before this court, the Unions assert all claimed grounds for nondisclosure, both statutory and constitutional, ofthe state employees' names and corresponding birth dates. The employee work e-mail addresses have been disclosed and are no longer at issue. See Clerk's Papers(CP) at 2182(Comm'r's Ruling, Wash. Pub. Emps.

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For the current opinion, go to . WA Pub. Emps. Ass'n et al. v. Evergreen Freedom Found.,95262-1

Ass'n V. State Ctr.for Childhood Deafness & Hearing Loss,No.48972-4-II(Wash. Ct. App. June 6, 2016)).

ANALYSIS

The PRA "begins with a mandate of full disclosure of public records;^ that

mandate is then limited only by the precise, specific, and limited exemptions which the Act provides." Progressive Animal Welfare Soc'y v. Univ. ofWash., 125 Wn.2d 243,258,884 P.2d 592(1994)(plurality opinion)(PAWS). The PRA requires that "[e]ach agency,in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (8) of this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records." RCW 42.56.070(1). '"The "other statutes" exemption incorporates into the [PRA] other statutes which exempt or prohibit disclosure of specific information or records.'" Lyft, Inc. V. City ofSeattle, 190 Wn.2d 769, 778, 418 P.3d 102(2018)(quoting PAWS, 125 Wn.2d at 261-62(citing former RCW 42.17.260(1)(1992), recodified as RCW 42.56.070(1))). Where other statutes mesh with the PRA,they operate to

^ A '"public record' includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared,owned,used,or retained by any state or local agency regardless ofphysical form

or characteristics." RCW 42.56.010(3).

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For the current opinion, go to . WA Pub. Emps. Ass'n et al. v. Evergreen Freedom Found.,95262-1

supplement it. See Planned Parenthood ofGreat Nw. v. Bloedow, 187 Wn. App. 606, 619, 350 P.3d 660 (2015) ("The 'other statute' exemption avoids any inconsistency and allows other state statutes and federal regulations to supplement the PRA's exemptions"(citing Ameriquest Mortg. Co. v. Office ofAtt'y Gen., 170 Wn.2d 418, 440, 241 P.3d 1245 (2010))). However, in the event of a conflict between the PRA and other statutes, "the provisions of[the PRA] shall govern." RCW 42.56.030;PA WS,125 Wn.2d at261-62. ThePRA mustbe liberally construed and its exemptions narrowly construed to promote the public policy of keeping Washington residents informed and in control of their public institutions. RCW 42.56.030. "The language ofthe[PRA]does not authorize us to imply exemptions but only allows specific exemptions to stand." Brouillet v. Cowles Publ'g Co., 114 Wn.2d 788,800,791 P.2d 526(1990).

Courts are often called on to determine whether records that are exempt under the PRA or an "other statute" should be enjoined from disclosure. See Lyfi, 190 Wn.2d at 790. The PRA injunction statute contemplates that disclosure may not be enjoined unless a party to which the record pertains establishes that disclosure is clearly not in the public interest and in fact poses substantial and irreparable harm. RCW 42.56.540. The lower courts in this case expressed uncertainty as to which injunction standard applies: CR 65 or the PRA standard. They appear to have

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For the current opinion, go to . WA Pub. Emps. Ass'n et al. v. Evergreen Freedom Found.,95262-1

applied both, in an abundance of caution. See WPEA, 1 Wn, App. 2d at 231-32; 1 VRP at 6. Our recent decision in Lyft clarifies that the PRA standard, not the general injunction standard, applies. See Lyft, 190 Wn.2d at 796.

A party seeking to prevent disclosure ofagency records under the PRA bears the burden ofproof. Confederated Tribes ofChehalis Reservation v. Johnson, 135 Wn.2d 734,744,958 P.2d 260(1998). Whether requested records are exempt from disclosure presents a legal question that is reviewed de novo. PAWS,125 Wn.2d at 252; RCW 42.56.550(3). A trial court's ultimate decision on whether to grant an injunction is reviewed for abuse of discretion. Kucera v. Dep't of Transp., 140 Wn.2d 200, 209, 995 P.2d 63 (2000). Findings of fact based on the testimonial record are reviewed for substantial evidence. Zink v. City ofMesa, 140 Wn. App. 328,336-37, 166 P.3d 738(2007).

The Unions' principal argument against disclosure is privacy--they assert both specific PRA exemptions and article I, section 7 privacy rights. They make an additional constitutional argument based on article I, section 5 associational rights. Though the Court of Appeals addressed only article I, section 7, we believe it is appropriate to begin our review with the statute's provisions, as we have previously concluded in the PRA context that reviewing courts '"should not pass on constitutional issues unless absolutely necessary to the determination ofthe case.'"

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