FREEDOM FOUNDATION, a Washington nonprofit organization, Appellant,
WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES ("DSHS"), an agency of the State of Washington, Respondent.
Freedom Foundation (Foundation) appeals the trial court's
ruling that the Department of Social and Health Services
(DSHS) did not violate the Public Records Act (PRA), chapter
42.56 RCW, in responding to the Foundation's requests for
records pertaining to at-home care providers (individual
providers) who provide personal care services to functionally
Foundation made a PRA request with DSHS in April 2017,
seeking records regarding the time and location of
contracting appointments for individual providers and of
opportunities for individual providers to view safety and
orientation training videos. The Foundation in January 2016
had made a virtually identical request but for an earlier
time period. This court affirmed the trial court's denial
of an injunction regarding the January 2016 PRA request in
SEIU 775 v. DSHS, 198 Wn.App. 745, 396 P.3d 369,
review denied 189 Wn.2d 1011 (2017). The April 2017
request was made on the same day that this court issued its
decision in SEIU 775.
notified the Foundation that it would not be able to produce
the records responsive to the April 2017 PRA request until
about June 13. DSHS also informed SEIU, the union
representing the individual providers, and the SEIU
Healthcare N.W. Training Partnership (Training Partnership)
of the Foundation's PRA request. The Training Partnership
responded by requesting from DSHS the same records the
Foundation had requested. DSHS produced the records to the
Training Partnership in installments on May 12 and June 9 and
set deadlines for the Training Partnership to enjoin
production of the records to the Foundation. But DSHS did not
produce the same records to the Foundation until later. The
Foundation filed suit against DSHS, claiming that DSHS's
conduct in responding to the April 2017 request violated the
PRA. The trial court dismissed the lawsuit.
that (1) the Foundation's lawsuit was not untimely even
though the Foundation filed its compliant before DSHS took a
final action on its PRA request, (2) DSHS's estimate of
the time needed to respond was reasonable because DSHS's
regional and area offices needed time to compile the
responsive records, (3) DSHS did not unlawfully distinguish
between the Foundation and the Training Partnership because
the PRA allows an agency to delay production of requested
records to allow a person affected by the production to
obtain a court order preventing disclosure, and (4) DSHS did
not violate the PRA by failing to produce the records to the
Foundation on June 9, 2017.
we affirm the trial court's judgment dismissing the
Foundation filed a PRA request with DSHS on January 12, 2016,
requesting "[t]he times and locations of all contracting
appointments for individual providers" and the
"times and locations of any state-sponsored or
facilitated opportunities for individual providers to view
the initial safety and orientation training videos,"
both between November 1, 2015 and December 31, 2016.
Clerk's Papers (CP) at 40.
sought an injunction to prevent DSHS from releasing the
requested records. SEIU 775, 198 Wn.App. at 747. The
trial court denied SEIU's request and SEIU appealed.
Id. at 749. This court issued a stay prohibiting
DSHS from releasing the records while the case was pending on
appeal. This court subsequently held that the requested
records did not fall within an exception to the PRA and
affirmed the trial court's denial of SEIU's request
for an injunction. SEIU 775, 198 Wn. App.
at 756-57. The opinion was issued on April 25, 2017.
Id. at 745.
Foundation's April 25, 2017 PRA Request
same day that this court filed its April 25 opinion in
SEIU 775, the Foundation filed a new PRA request.
The Foundation requested "[t]he times, dates, and
locations of all contracting appointments for individual
providers" and the "times, dates, and locations of
all state-sponsored or facilitated opportunities for
individual providers to view the initial safety and
orientation training videos," both between January 1 and
December 31, 2017. CP at 410.
responded on May 2, which was within five business days of
the Foundation's request. In order to locate and assemble
the responsive records, the DSHS public records officer
needed to contact three regional offices and 14 area offices.
And on the same day that DSHS received the Foundation's
request, DSHS also received approximately 79 other PRA
requests and already was processing about 60 PRA requests.
DSHS stated in its response letter, "Due to workload,
the number of other pending requests and the scope of your
request, we estimate it will take up to 30 business days or
until about June 13, 2017, to find, review, copy and produce
any available records." CP at 311.
Training Partnership's May 8, 2017 PRA Request
May 2, DSHS notified SEIU and the Training Partnership that
it had received a PRA request and that the responsive records
related to SEIU and union members. DSHS informed SEIU and the
Training Partnership that they had until May 16 to seek an
injunction preventing the release of the requested records.
8, the Training Partnership replied that it typically
received a copy of responsive records before determining if
it was appropriate to seek an injunction and requested that
DSHS provide a copy of the records. DSHS treated this request
for records as a PRA request. DSHS responded to the Training
Partnership's request by producing some of the requested
records on May 12. DSHS also extended the deadline for the
Training Partnership to obtain an injunction to May 26.
April 26, 2017, this court had entered an order stating that
the previously issued stay prohibiting DSHS from releasing
the records sought in the January 2016 PRA request would
continue in force until a mandate was issued. The parties
disagreed whether the stay extended to the April 2017
request. On May 15, this court issued a stay prohibiting the
release of the records responsive to the April 2017 PRA
request pending further briefing on the issue. DSHS informed
the Training Partnership on June 2 that it could not produce
the remainder of the requested records because of the stay.
9, this court entered an order clarifying that DSHS was not
enjoined from releasing the records the Foundation requested
in its April 2017 PRA request. On that same day, the
Foundation emailed DSHS and stated its expectation that the
requested records would be produced by the end of the day.
Counsel for DSHS replied, "DSHS previously sent a letter
estimating its response date. We will let you know if there
are changes to that estimated time frame." CP at 308.
Also on June 9, DSHS produced to the Training Partnership the
reminder of the records it had requested on May 8. DSHS
extended the deadline for the Training Partnership to obtain
an injunction to June 12.
on May 24 SEIU had filed a petition for discretionary review
of this court's decision in SEIU 775 with the
Supreme Court. On June 12, SEIU notified DSHS and the
Foundation that it planned to file an emergency motion in the
Supreme Court to enjoin DSHS from releasing the records
sought in the Foundation's April 2017 PRA request. DSHS
told the Foundation that it would not release those records
to the Foundation pending receipt of the motion. On June 13,
the Supreme Court temporarily enjoined DSHS from releasing
records in response to the Foundation's April 2017 PRA
request. The temporary stay expired on July 10.
11, DSHS produced to the Foundation the records responsive to
its April 2017 PRA request. The records produced consisted of
a 12-page spreadsheet providing the information the
Foundation had requested.
12, the Foundation filed a complaint against DSHS based on
its April 2017 PRA request. The Foundation alleged that DSHS
had violated the PRA by providing an unreasonable estimate of
the time necessary to respond to the request. In its answer
to the Foundation's complaint, DSHS argued that the
Foundation's claims were untimely because the agency had
not yet taken a final action on the Foundation's PRA
Foundation did not assert claims for other PRA violations
relating to the delay in producing records in its complaint.
Those claims were first asserted in the Foundation's
summary judgment motion in October 2017.
November, the trial court held a hearing on the merits
pursuant to RCW 42.56.550(2). The Foundation argued that DSHS
had violated the PRA by (1) providing an unreasonable time
estimate, (2) distinguishing between requestors, (3) failing
to provide the fullest and timeliest assistance, and (4)
delaying the release of records. DSHS argued that the trial
court should dismiss the Foundation's claims because the
Foundation's lawsuit was filed before DSHS produced the
records, and therefore was not timely.
trial court issued written findings of fact and conclusions
of law. The court initially concluded that all of the
Foundation's claims were properly before the court.
Regarding DSHS's time estimate, the court found that at
the time of the estimate DSHS had over 2, 000 public records
requests and that DSHS had received over 50 PRA requests on
the same day as the Foundation's request. The court also
found that the records the Foundation requested were located
in multiple different offices. The court concluded that (1)
DSHS's estimate of time was reasonable under former RCW
42.56.520 (2010), (2) DSHS did not unlawfully distinguish
between requestors and therefore did not violate former RCW
42.56.080 (2016), (3) any disparity in the timing of
production between the Training Partnership and the
Foundation was lawful, and (4) DSHS provided the fullest and
most timely assistance to the Foundation and therefore did
not violate RCW 42.56.100. Accordingly, the trial court
dismissed the Foundation's lawsuit with prejudice.
Foundation appeals the trial court's order dismissing its