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White v. Clark County

Court of Appeals of Washington, Division 2

July 25, 2017

TIMOTHY WHITE, Appellant,
v.
CLARK COUNTY, Respondent.

          Maxa, A.C.J.

          Timothy White submitted a Public Records Act (PRA)[1] 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.

         White 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 II].

         We 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.

         Accordingly, we affirm the trial court's denial of White's motion to show cause and dismissal of White's PRA action.

         FACTS

         On July 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."[2] 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.

         White 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.

         White appeals the trial court's denial of relief under the PRA.

         ANALYSIS

         A. PRA Exemption for Tabulated Election Ballots

         White 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.

          1. Legal Principles

         The PRA 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).

         A 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 42.56.550(3).

         An 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 ...


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