SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization, Petitioner,
STATE OF WASHINGTON, DEPARTMENT OF EARLY LEARNING, a state agency, and EVERGREEN FREEDOM FOUNDATION, a nonprofit corporation, Respondents.
Evergreen Freedom Foundation (Foundation) filed a Public
Records Act (PRA), chapter 42.56 RCW, request for the names
and addresses of individuals who provide subsidized childcare
under Washington's Working Connections Child Care program
(WCCC). After the Foundation filed its request but before any
records were released, voters passed an initiative exempting
those names and addresses from PRA coverage and prohibiting
agencies from releasing them. The question presented in this
case is whether that initiative bars release even though it
did not take effect until after the Foundation made its
public records request. We hold that the answer is yes.
Department of Early Learning (Department) administers the
WCCC, which subsidizes childcare for low income families. The
subsidies fund childcare in both commercial and private
residential settings, but this case involves only the latter.
Providers in private residential settings are called
"family child care providers" and may be either
licensed or license exempt. Clerk's Papers (CP) at 904.
State law defines family childcare providers as public
employees for the purposes of collective bargaining, RCW
41.56.028(1), (3), and petitioner Service Employees
International Union Local 925 (SEIU 925) represents these
November 2, 2016, the Foundation submitted a PRA request to
the Department seeking the following:
1. The first name, last name, work mailing address, and work
email address of all licensed family child care providers, as
defined by RCW 41.56.030(7).
2. The first name, last name, work mailing address, and work
email address of all license-exempt family child care
providers, as defined by RCW 41.56.030(7).
CP at 909.
Department informed SEIU 925 that, in the absence of a court
injunction, it would release all the requested information to
the Foundation on November 22, 2016. On November 8, 2016,
Washington voters approved Initiative 1501 (I-1501), which
"prohibit[s] the release of certain public records that
could facilitate identity theft and other financial crimes
against seniors and vulnerable individuals."
Id. at 299. Two of the initiative's provisions
address the release of records responsive to the
Foundation's PRA request. One provision, now codified at
RCW 43.17.410(1), provides that "neither the state nor
any of its agencies shall release sensitive personal
information of vulnerable individuals or sensitive personal
information of in-home caregivers for vulnerable populations,
as those terms are defined in RCW 42.56.640." The other,
now codified at RCW 42.56.640(1) in the PRA, provides that
"[s]ensitive personal information of vulnerable
individuals and sensitive personal information of in-home
caregivers for vulnerable populations is exempt from
inspection and copying under this chapter." The new law
defines '"[i]n-home caregivers for vulnerable
populations'" to include WCCC "family child
care providers." RCW 42.56.64O(2)(a). It defines
'"[s]ensitive personal information'" as
"names, addresses, GPS [global positioning system]
coordinates, telephone numbers, email addresses, social
security numbers, driver's license numbers, or other
personally identifying information." RCW 42.56.64O(2)(b)
(second alteration in original). The initiative took effect
on December 8, 2016. LAWS OF 2017, ch. 4 (1-1501).
weeks before the new law took effect, SEIU 925 filed a
complaint for declaratory and injunctive relief barring the
Department from releasing the records. It sought a temporary
restraining order and a preliminary injunction. The parties
agreed to extend any deadline for release until after the
court could rule on the motion for a preliminary injunction.
The trial court issued its ruling December 9, 2016, one day
after I-1501 took effect. It denied injunctive relief but
ordered the Department to delay release so SEIU 925 could
appeal the ruling. Division Two granted the Department's
motion for an emergency injunction, pending the appellate
court's final decision. That court affirmed on September
18, 2018. Serv. Emps. Int'l Union Local 925 v. Dep
't of Early Learning, No. 49726-3-II (Wash.Ct.App.
Sept. 18, 2018) (unpublished),
Court of Appeals, SEIU 925 argued that the trial court erred
by failing to apply 1-1501 (specifically, the provisions
later codified at RCW 43.17.410(1) and RCW 42.56.640) because
that law barred release of the requested records by the time
the court ruled on the motion for a preliminary injunction.
Id. at 8. Division Two rejected that argument,
holding that the preliminary injunction was governed by the
law in effect at the time of the Foundation's
request and that 1-1501 did not meet any of the
criteria necessary to establish retroactive application.
Id. at 10-15. It reasoned that, absent
retroactivity, the law governing a disputed public records
request is always "the law in existence at the time the
request was made." Id. at 13 (citing John
Doe A v. Wash. State Patrol, 185 Wn.2d 363, 375 n.2, 374
P.3d 63 (2016)). Citing only Dragonslayer, Inc. v.
Washington State Gambling Commission, 139 Wn.App. 433,
449, 161 P.3d 428 (2007), the court also concluded that a PRA
request creates a "vested right" that cannot be
retroactively infringed. SEIU 925, No. 49726-3-II,
slip op. at 12. Because it concluded that no PRA exemption
applied, the court did not consider whether SEIU 925 met the
other requirements for injunctive relief. See Ameriquest
Mortg. Co. v. Office of Att'y Gen., 177 Wn.2d 467,
487, 300 P.3d 799 (2013) (nonagency party seeking injunction
to prevent PRA disclosure must show (1) record specifically
pertains to that party, (2) an exemption applies, and (3)
disclosure is not in the public interest and would
substantially and irreparably harm that party or a vital
six weeks after the Court of Appeals issued its decision in
this case, another Division Two panel reached the opposite
conclusion in a case with identical relevant facts. The court
in Puget Sound Advocates for Retirement Action v.
Department of Social & Health Services (PSARA)
held that, even if I-1501 did not apply retroactively, it
still barred the release of records responsive to requests
already pending upon its enactment. No. 50430-8-II, slip op.
at 7 (Wash.Ct.App. Oct. 30, 2018) (unpublished),
PSARA court reasoned that the plain language of RCW
43.17.410(1) did not just exempt care providers'
personal information from the PRA but also, separately,
prohibited the Department from releasing that
information. Id. at 7-8. Therefore, the court
concluded, the event "trigger[ing]" the statute was
not the PRA request but, instead, the Department's
"obligation under the PRA to actually release the
information." Id. at 8. For this conclusion,
the PSARA court relied on In re Personal
Restraint of Flint, 174 Wn.2d 539, 547, 277 P.3d 657
(2012), a case addressing the '"triggering
event'" for an amendment to a statute governing
community custody violations. PSARA, No. 50430-8-II,
slip op. at 8.
granted SEIU 925's petition for review. SEIU 925 v.
Dep't of Early Learning, 192 Wn.2d 1022 (2019).
issues presented in this case are questions of statutory
interpretation. These are questions of law reviewed de novo.
Williams v. ...