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Washington Public Employees Association, UFCW Local 365 v. Washington State Center

Supreme Court of Washington, En Banc

October 24, 2019

WASHINGTON PUBLIC EMPLOYEES ASSOCIATION, UFCW LOCAL 365, a labor organization, and PROFESSIONAL & TECHNICAL EMPLOYEES LOCAL 17, a labor organization, Respondents,
STATE OF WASHINGTON; DEPARTMENT OF SOCIAL AND HEALTH SERVICES, an agency of the State of Washington; and DEPARTMENT OF HEALTH, an agency of the 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 of public records containing their birth dates associated with their names. We conclude that the Public Records Act (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 Court of Appeals and reinstate the superior court decision denying a permanent injunction.


         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[1] 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., No. 16-2-01547-34 (Thurston County Super. Ct. Wash., July 29, 2016) at 3; Verbatim Report of Proceedings (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 of Appeals 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 of its 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, of the 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. Ass 'n v. State Ctr.for Childhood Deafness & Hearing Loss, No. 48972-4-II (Wash.Ct.App. June 6, 2016)).


         The PRA "begins with a mandate of fiill disclosure of public records;[2] that mandate is then limited only by the precise, specific, and limited exemptions which the Act provides." Progressive Animal Welfare Soc'y v. Univ. of Wash., 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 of Seattle, 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 supplement it. See Planned Parenthood of Great 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 of Att'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 at 261 -62. The PRA must be 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 of the [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 Lyft, 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 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 of agency records under the PRA bears the burden of proof. Confederated Tribes of Chehalis 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 of Mesa, 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 of the case.'" Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 208 n.10, 189 P.3d 139 (2008) (Bellevue John Does II) (quoting State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981)).

         I. The PRA Provides No Exemption from Disclosure of State Employees' Birth Dates Associated with Their Names

         The efficacy of the PRA depends on judicial adherence to its mandates in the face of valid arguments about the effects of public disclosure. We appreciate the Unions' concern that disclosing birth dates with corresponding employee names may allow PRA requesters or others to obtain residential addresses and to potentially access financial information, retirement accounts, health care records or other employee records. Appellants' Opening Br. at 3-5 (Wash.Ct.App. No. 49224-5-II (2016)). Yet, we cannot judicially expand the PRA's narrow exemptions beyond the boundaries set by the legislature, lest we step beyond our interpretive role and risk disrupting the balance of public policies the PRA reflects. See PAWS, 125 Wn.2d at 259-60 ("The Legislature takes the trouble to repeat three times that exemptions under the Public Records Act should be construed narrowly. The Legislature leaves no room for doubt about its intent." (citations omitted) (citing former RCW 42.17.010(11) (2012), recodified as RCW 42.17A001; former RCW 42.17.251 (2006), recodified as RCW 42.56.030; former RCW 42.17.920 (2012), recodified as RCW 42.17A.904). The requested name and birth date information at issue in this case is not exempt from disclosure under any statutory provision.

         A. RCW 42.56.250(4) and RCW 42.56.230(7)

         If the PRA contained an exemption for birth dates of state employees, that exemption would likely be found in RCW 42.56.250(4), which addresses the exact category of records requested here.[3] Personnel and employment related records exempt from disclosure under RCW 42.56.250(4) include birth dates of dependents of employees, but not birth dates of employees themselves. The plain language of the statute is unambiguous; the legislature exempted only the birth dates of dependents. See Nissen v. Pierce County, 183 Wn.2d 863, 881, 357 P.3d 45 (2015) ("Statutory interpretation starts with the plain meaning of the language; the plain meaning controls if it is unambiguous." (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn, 2d 1, 11-12, 43 P.3d 4 (2002))). We cannot assume that the legislature simply neglected to include employee birth dates within the scope of exempted employee records. See Bour v. Johnson, 122 Wn.2d 829, 836, 864 P.2d 380 (1993) ("Legislative inclusion of certain items in a category implies that other items in that category are intended to be excluded."). Our precedent is clear and unwavering that this court cannot interpret the PRA to imply broad exemptions that have not been expressly delineated. See PAWS, 125 Wn.2d at 258; Brouillet, 114 Wn.2d at 800.

         The Unions reason that subsection .250(4) does not mention employee birth dates because records of "age" are already exempted under RCW 42.56.230(7).[4] Setting aside the fact that the same argument can be made for records of an employee's dependent's age, the driver's license exemption is not so broad. It plainly prevents disclosure of copies of birth certificates, adoption papers, Social Security cards, or similar documents that individuals provide in connection with getting state identification cards. RCW 42.56.230(7) does not apply to the employee records at issue here.

         Moreover, this exemption provides no basis to imply a broad rule of nondisclosure for all records containing a state employee's birth date, especially when the specific provision addressing employee records, RCW 42.56.250(4), does not exempt employee birth dates. We must read RCW 42.56.540(4) for what it is: a list of specifically exempted personal information, not an illustrative description of a broader, implied exemption for all personal information. See Simpson Inv. Co. v. Dep't of Revenue, 141 Wn.2d 139, 156, 3 P.3d 741 (2000) ("'In other words, the precise terms modify, influence or restrict the interpretation or application of the general terms where both are used in sequence or collocation in legislative enactments.'" (quoting State v. Thompson, 38 Wn.2d 774, 777, 232 P.2d 87 (1951))). This is not the first time we have been asked to imply a broader exemption than is expressed, and we decline to do so. See PAWS, 125 Wn.2d 259-60 ("The Legislature's response to our opinion in [In re Rosier, 105 Wn.2d 606, 717 P.2d 1353 (1986)] makes clear that it does not want judges any more than agencies to be wielding broad and malleable exemptions.").

         B. RCW 42.56.230(3)

         The Unions also rely on RCW 42.56.230(3), which exempts from public disclosure "[p]ersonal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy." RCW 42.56.230(3).[5] The Foundation counters that no privacy right is implicated by its public records request, observing that individual voter's names, birth dates and addresses are already publicly available upon request from the Washington secretary of state. To determine whether disclosure of the records at issue here falls within the RCW 42.56.230(3) exemption, we must decide (1) whether the records constitute personal information, (2) whether the employees have a right to privacy in the personally identifying records, and (3) whether disclosure of the employees' personally identifying records would violate their right to privacy. Bellevue John Does II, 164 Wn.2d at 210.

         In Hearst, we defined "right to privacy" in RCW 42.56.230(3) by referring to the common law tort of invasion of privacy through public disclosure of private facts. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 135, 580 P.2d 246 (1978). We adopted the common law definition of "invasion of privacy" set out in Restatement (Second) of Torts § 652D (Am. Law Inst. 1977), which provides, '"One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.'" Id. at 135-36 (quoting RESTATEMENT § 652D); see also id. at 135 ("Inasmuch as the statute contains no definition of the term, there is a presumption that the legislature intended the right of privacy to mean what it meant at common law."). The legislature later embraced this formulation. RCW 42.56.050 ('"[R]ight to privacy[]' ... is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public"). The term "legitimate" in the context of the PRA means "reasonable." Dawson v. Daly, 120 Wn.2d 782, 798, 845 P.2d 995 (1993).

         No Washington case has ever held that employee birth dates associated with names are private. The privacy protection afforded by the PRA is narrow, and it extends an individual the right to privacy "only in "'matter[s] concerning [their] private life.'"" Predisik v. Spokane School Dist. No. 81, 182 Wn.2d 896, 904, 346 P.3d 737 (2015) (first alteration in original) (quoting Hearst Corp., 90 Wn.2d at 135 (quoting RESTATEMENT § 652D)). Tort law principles "fill this definitional void and define the contours of the PRA's privacy right." Id. As noted, this court looks to the Restatement to determine what kind of information falls within the scope of private matters under the PRA:

'"Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget.'"

Id. at 905 (quoting Hearst Corp., 90 Wn.2d at 136 (quoting RESTATEMENT § 652D cmt. b at 386)). The "nature of facts" protected by the privacy provision within the PRA "taken in context makes clear that the PRA will not protect everything that an individual would prefer to keep private." Id. (emphasis omitted). Instead, "[i]ndividuals have a privacy right under the PRA only in the types of 'private' facts fairly comparable to those shown in the Restatement" Id. Our adoption of the Restatement privacy test in Hearst Corp. leaves no room for including birth dates within the common law sphere of protected privacy. The same comment to the Restatement quoted above explains:

Thus there is no liability for giving publicity to facts about the plaintiffs life that are matters of public record, such as the date of his birth, the fact of his marriage, his military record, the fact that he is admitted to the practice of medicine or is licensed to drive a taxicab, or the pleadings that he has filed in a lawsuit. On the other hand, if the record is one not open to public inspection, as in the case of income tax returns, it is not public, and there is an invasion of privacy when it is made so.

Restatement § 652D cmt b (emphasis added).

         The Unions and supporting amici point out that notions of privacy have evolved since the Restatement was written. For example, payors no longer routinely print Social Security numbers on personal checks, nor are the numbers commonly used for financial, student, and health account numbers. Increasing misuse of Social Security numbers eventually transformed this personal identifier from an innocuous individual attribute to what is widely regarded as highly sensitive information. See Br. of Amicus Curiae Am. Civil Liberties Union of Wash. (ACLU) at 16-18. The Unions and amici argue that birth dates now fulfill a similar identifying role insofar as they are necessary to authenticate criminal histories, driver's license address changes, medication prescriptions, and online password change requests, making birth dates targets for identity thieves. Id.

         We acknowledge that there are legitimate concerns about the misappropriation of birth dates that echo the concerns related to Social Security numbers, but this does not mean that names and associated birth dates have become private-only that this information is personally identifying. The fact that information is personally identifying, alone, is insufficient to warrant its exemption from disclosure under the PRA. Predisik, 182 Wn.2d at 904 ("The existence of 'personal information' in a public record is necessary to the exemption, but it is not sufficient alone to withhold the record."); accord Bellevue John Does II, 164 Wn.2d at 212. As the parties' references to voter registration databases and Department of Health vital records confirm, birth dates continue to be a matter of public record consistent with the understanding of the Restatement drafters.

         Moreover, to be exempt under the PRA, birth date information must be classified as "not of legitimate concern to the public." RCW 42.56.050. However, birth dates are often important in matters of public concern. Amicus Allied Daily Newspapers of Washington (Allied) points out that disclosure of public employee birth dates has helped the Seattle Times to track abusive high school coaches and teachers who moved from one district to another after prior reprimands, warnings, or dismissals for sexual misconduct. Br. of Amicus Curiae Allied et al. at 18-19. The Seattle Times has also obtained birth dates from state pension and payroll data that exposed government employees who drew pension and employment income simultaneously. Id. at 19. These examples underscore that disclosure of birth dates often serves the public interest in transparency and oversight.

         At its core, the Union's argument is policy based: because birth dates are widely used personal identifiers and there is a proliferation of misuse for criminal purposes, this information about state employees should be protected from public disclosure. That policy decision is not ours to make. The ubiquity of birth date information simply confirms that it is not recognized as private. Even if state employees today would find the disclosure of their birth dates to be "highly offensive," this is not sufficient grounds for exemption under RCW 42.56.230(3) unless a right of privacy in the information exists in the first instance. Predisik, 182 Wn.2d at 904 ("Employees must also demonstrate that they have a right to privacy in personal information contained in a record and if such a right exists that disclosure would violate it."); RCW 42.56.050 ("The provisions of this chapter dealing with the right to privacy in certain records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records.").[6]

         The PRA also leaves no room for the Unions' "linkage" argument, which asserts that the ability to link personal information that is not sensitive with other public records to obtain additional personal information renders disclosure highly offensive. Amicus ACLU notes that a state employee's home address is exempt from disclosure pursuant to RCW 42.56.250(4), but if a requester obtains an employee's birth date and full name, this can be used to obtain the state employee's home address from the secretary of state's voter registration database. Br. of Amicus ACLU at 19. This possibility underscores a valid concern that PRA requests may be used to circumvent express statutory privacy protections. However, the ability to leverage publicly available personal information in a way that erodes privacy is not unique to this context, and the PRA provides no exemption on this basis. As we have recognized time and again, it is simply not this court's prerogative to rewrite the PRA to address such concerns. See Serv. Emps. Int'l Union Local 925 v. Freedom Found., 197 Wn.App. 203, 219-20, 389 P.3d 641 (2016) (SEIU 925) (rejecting creation of exemption for provider contact information even though disclosure could make it possible to discover exempt personal information under RCW 42.56.230(2)(a)(ii) pertaining to children enrolled in childcare programs); SEIU Healthcare 775NW v. Dep't of Soc. & Health Servs., 193 Wn.App. 377, 385, 377 P.3d 214 (holding RCW 42.56.230(1) exemption for welfare recipients does not preclude the Department of Social and Health Services (DSHS) from disclosing lists of individual providers because the linked provider list is not personal information maintained in the exempt welfare recipient files), review denied, 186 Wn.2d 1016 (2016); Koenigv. City of Des Moines, 158 Wn.2d 173, 182-83, 189, 142 P.3d 162 (2006) (rejecting denial of a PRA request that referenced exempt information under former RCW 42.17.31901 (2006) (recodified at RCW 42.56.240(5)) (name of child sexual assault victim), given court's lack of authority to "look beyond the four corners of the records at issue to determine whether they were properly withheld"); King County v. Sheehan, 114 Wn.App. 325, 346, 57 P.3d 307 (2002) (rejecting county's linkage argument because "release of public employees' names, without more, is not highly offensive").

         While preventing identity theft and the misuse of personal information is an important policy objective, we must recognize that the PRA embodies a critical public policy in its own right. Resident Action Council v. Seattle Hous. Auth, 177 Wn.2d 417, 432, 327 P.3d 600 (2013) ("the PRA's purpose of open government remains paramount"). In plain terms, the PRA requires courts to uphold its policies above others when there is a conflict among competing objectives or statutes. Worthington v. WestNET, 182 Wn.2d 500, 507, 341 P.3d 995 (2015) ("With respect to the scope of the act, the statute unambiguously provides for a liberal application of its terms, explicitly subordinating other statutes to its provisions and goals." (quoting RCW 42.56.030)). Having been rebuffed in past efforts to read expansive exemptions into the PRA, [7] we must exercise judicial restraint and leave it to the legislative branch to consider how best to address growing concerns about public records being misused for improper or criminal purposes. The legislature is more than capable of modifying or expanding PRA exceptions to address any apparent "loopholes" that exist in current exemptions. We hold that the requested birth date information of state employees is not exempt from disclosure under RCW 42.56.230(3).

         C. Other Statutory Provisions Invoked by the Unions

         The Unions rely on several additional statutes to claim exemption of the requested records from public disclosure. We agree with the superior court that none of the asserted statutory grounds for exemption apply.

         First, the Unions argue that the requested records are exempt from disclosure because the Foundation is seeking them for impermissible "commercial purposes." RCW 42.56.070(8). In the specific case of records requested for a commercial purpose, agencies may inquire as to future uses of the requested documents. Id; SEW Healthcare 775NW, 193 Wn.App. at 400-08. Courts employ a case-by-case review based on the identity of the requester, the nature of the records requested, and any other information available to the agency. SEW Healthcare 775NW, 193 Wn.App. at 405. The Foundation indicates that it intends to use the requested records for outreach, education, and advocacy purposes, with revenue generation as a possible secondary use. Suppl. Br. of Pet'r at 2-3. The lower court correctly concluded that the records request, on its face, is not commercial. See VRP at 16-17 (The Foundation's stated direct purpose is "to contact state employees [and] advise them of their constitutional rights. That's not a commercial purpose; that's a political speech purpose; and it's not barred by the commercial purposes exemption."). RCW 42.56.070(8) does not apply here.

         The Unions' reliance on RCW 42.56.250(9) (recodified as 42.56.250(8) (2019)) is also misplaced as to most of the affected employees. This provision exempts from disclosure certain employees' month and year of birth from their personnel files, namely employees and workers of criminal justice agencies as defined in RCW 10.97.030.[8] Appellant's Opening Br. at 27 (Wash.Ct.App. No. 49224-5-II (2016)). Within DSHS, the Juvenile Rehabilitation Administration (JRA) serves high-risk youth who are committed to JRA custody by county juvenile courts.[9] DSHS correctly regarded RCW 42.56.250(9) as applicable only to those SEIU H99NW-represented employees working at the JRA facilities but not applicable to employees in other departments with missions ...

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