Timothy White submitted a Public Records Act
(PRA) request to Clark County, requesting
production of ballots cast in the November 2013 election.
After the County declined to produce the ballots, White filed
a PRA action and a motion to show cause to compel production.
White appeals the trial court's ruling that the ballots
were exempt from disclosure under the PRA.
previously had submitted - a day after the election - a PRA
request to Clark County for pre-tabulated ballot
images from the November 2013 election. This court held that
the County was not required to produce pre-tabulated ballots
because article VI, section 6 of the Washington Constitution,
various sections of Title 29A RCW, and secretary of state
regulations together constituted an "other statute"
exemption to the PRA under RCW 42.56.070(1) for those
ballots. White v. Clark County, 188 Wn.App. 622,
631, 637, 354 P.3d 38 (2015), review denied, 185
Wn.2d 1009 (2016) [White I]. Division One of this
court issued a similar ruling regarding White's identical
PRA requests to two other counties. White v. Skagit
County, 188 Wn.App. 886, 898, 355 P.3d 1178 (2015),
review denied, 185 Wn.2d 1009 (2016) [White
acknowledge that these cases do not directly control
White's current PRA request because he now is requesting
ballots more than 60 days after they were tabulated. But we
hold White is not entitled to disclosure of the requested
records because (1) both RCW 29A.60.110 and WAC 434-261-045
create an "other statute" exemption that applies to
election ballots even after the minimum 60-day retention
period after tabulation, (2) whether concerns about
jeopardizing the secrecy of the vote could have been
addressed by redacting certain information is immaterial
because the "other statute" exemption applies to
the entire ballot, and (3) RCW 42.56.210(2) does not override
this exemption because White cannot show that withholding the
ballots is "clearly unnecessary" to protect the
vital government interest in preserving the voters' right
to absolute secrecy of their votes.
we affirm the trial court's denial of White's motion
to show cause and dismissal of White's PRA action.
2, 2015, White sent a PRA request to the County for election
records relating to the November 2013 general election,
including paper ballots and images of ballots "received,
cast, voted, or otherwise used." Clerk's Papers (CP) at
16. The County responded that it could not release the
ballots because the records were subject to the Washington
Constitution's mandate of absolute secrecy of the vote.
The County also cited both the White I and
White II decisions as support for its conclusion
that the ballots were exempt from disclosure. The County did
release almost 9, 000 pages of other election records.
filed a complaint alleging that the County had violated the
PRA and seeking to compel production of the requested
ballots. At the same time, White filed a motion under RCW
42.56.550(1) requiring the County to show cause why the trial
court should not order production of the requested ballots.
The court ruled that "voted ballots are exempt from
production under the PRA and Clark County's refusal to
provide copies of the requested ballots is proper based on
the applicable constitutional, statutory and case law."
CP at 518. Therefore, the court concluded that the County
complied with the PRA in its response to White's request,
denied White's motion to show cause, and dismissed
White's PRA complaint.
appeals the trial court's denial of relief under the PRA.
Exemption for Tabulated Election Ballots
argues that the County wrongfully failed to produce the
ballots he requested because the "other statute"
exemption for pre-tabulated ballots does not apply to a
request for tabulated ballots made more than 60 days after
tabulation. We hold that both RCW 29A.60.110 and WAC
434-261-045 provide an "other statute" exemption
for tabulated ballots even beyond 60 days after tabulation.
mandates the broad disclosure of public records. John Doe
A v. Wash. State Patrol, 185 Wn.2d 363, 371, 374 P.3d 63
(2016). Therefore, an agency has an affirmative obligation to
disclose records requested under the PRA unless a specific
exemption applies. Id. at 371-72. And we must
liberally construe the PRA in favor of disclosure and
narrowly construe its exemptions. RCW 42.56.030; John Doe
A, 185 Wn.2d at 371. The agency bears the burden of
establishing that an exemption to production applies. RCW
42.56.550(1); Sargent v. Seattle Police Dep't,
179 Wn.2d 376, 385-86, 314 P.3d 1093 (2013).
requesting party denied disclosure may move for a show cause
hearing, at which the burden of proof is on the agency to
show that its denial was proper. RCW 42.56.550(1),
(3). We review the agency's actions de novo. RCW
agency may lawfully withhold production of records if a
specific exemption applies. White I, 188 Wn.App. at
630. There are three sources of PRA exemptions: (1)
enumerated exemptions contained in the PRA itself, (2) any
"other statute" that exempts or prohibits