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City of Seattle v. Egan

Court of Appeals of Washington, Division 1

February 3, 2014

The City of Seattle, Respondent,
v.
James Egan, Appellant

Superior Court County: King. Superior Court Cause No: 12-2-00938-4 SEA. Date filed in Superior Court: June 28, 2012. Superior Court Judge Signing: Dean Lum.

James Egan and Jay W. Wilkinson (of Law Offices of James Egan LLC ); and Dawn M. Bettinger (of Law Office of Dawn M. Bettinger ), for appellant.

Peter S. Holmes, City Attorney, and Mary F. Perry, Assistant ; and Philip A. Talmadge (of Talmadge / Fitzpatrick ), for respondent.

AUTHOR: Grosse, J. WE CONCUR: Lau, J., Dwyer, J.

OPINION

Grosse, J.

[179 Wn.App. 335] ¶ 1 The Public Records Act (PRA), chapter 42.56 RCW, is a legislatively created right of access to public records. The legislature is free to restrict or even eliminate access without offending any constitutional protection. The city of Seattle (City) brought a declaratory action for the limited purpose of determining the applicability of the privacy act's [1] prohibitions against the release of the records requested here. Such an action is specifically provided for in the PRA. Because James Egan does not have a constitutional right to the records requested, his request under the [179 Wn.App. 336] PRA does not fall within the ambit

Page 569

of the anti-SLAPP [2] statute as protected public participation or petition activity. We affirm the trial court's dismissal.

FACTS

¶ 2 On September 23, 2011, James Egan requested records from the Seattle Police Department's Office of Professional Accountability's (OPA) internal investigation, regarding complaints against four officers. Included in the request were 36 " dash-cam" videos that OPA reviewed in the investigations of those complaints. The City provided Egan with some records but refused to release 35 of the 36 dash-cam videos, claiming those were exempt from disclosure under RCW 9.73.090(1)(c). RCW 9.73.090(1)(c) prohibits the City from providing videos to the public until final disposition of any criminal or civil litigation that arises from the event or events that were recorded.[3]

¶ 3 Egan disputed the application of that exemption and threatened to sue. The City filed a motion for declaratory judgment and a preliminary injunction against Egan. RCW 42.56.540 authorizes a court to enjoin production of a public record falling under an exemption. The City wanted to resolve any uncertainty and to avoid the accumulation of potential penalties should Egan delay suing. The City noted that it was involved in a pending lawsuit in which access to dash-cam videos was one of the issues.[4]

[179 Wn.App. 337] ¶ 4 Egan filed a motion to strike and dismiss the City's suit under RCW 4.24.525, Washington's anti-SLAPP statute. Egan appeals the trial court's denial of that motion.

ANALYSIS

¶ 5 A strategic lawsuit against public participation--otherwise known as a " SLAPP" suit--is a meritless suit filed primarily to chill a defendant's exercise of First Amendment rights.[5] This court reviews the denial of an anti-SLAPP motion de novo.[6] To prevail on a motion to dismiss, Egan was required to prove by a preponderance of the evidence that his claim was based on an action involving public ...


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