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The Associated Press v. The Washington State Legislature

Supreme Court of Washington, En Banc

December 19, 2019

THE ASSOCIATED PRESS, NORTHWEST NEWS NETWORK, KING-TV ("KING 5"), KIRO 7, ALLIED DAILY NEWSPAPERS OF WASHINGTON, THE SPOKESMAN-REVIEW, WASHINGTON NEWSPAPER PUBLISHERS ASSOCIATION, SOUND PUBLISHING, INC., TACOMANEWS, INC. ("THE NEWS TRIBUNE"), and THE SEATTLE TIMES, Respondents/Cross-Petitioners,
v.
THE WASHINGTON STATE LEGISLATURE; THE WASHINGTON STATE SENATE; THE WASHINGTON STATE HOUSE OF REPRESENTATIVES, Washington state agencies; and SENATE MAJORITY LEADER MARK SCHOESLER, HOUSE SPEAKER FRANK CHOPP, SENATE MINORITY LEADER SHARON NELSON, and HOUSE MINORITY LEADER DAN KRISTIANSEN, each in their official capacity, Petitioners/Cross-Respondents.

          OWENS, J.

         This case asks us to determine whether the state legislative branch is subject to the general public records disclosure mandate of the Public Records Act (PRA), ch. 42.56 RCW. To resolve this question, we must decide whether each of the two classes of legislative entities constitute "agencies" for purposes of the PRA: the offices of individual legislators on the one hand and the institutional bodies of the senate, house of representatives, and legislature as a whole on the other. We hold that under the plain meaning of the PRA, individual legislators are "agencies" subject in full to the PRA's general public records disclosure mandate because they are expressly included in the definitional chain of "agency" in a closely related statute. We further hold that the institutional legislative bodies are not "agencies" because they are not included in that definitional chain, but they are instead subject to the PRA's narrower public records disclosure mandate by and through each chambers' respective administrative officer. Accordingly, we affirm the trial court.

         FACTS

         The parties agree that there are no material facts in dispute. Between January 25 and July 26, 2017, members of the news media submitted 163 PRA requests to the state senate, the house of representatives, and the legislature as a whole, as well as the offices of individual state senators and representatives. Senate and house counsel responded to the news media's PRA requests on behalf of the chambers' chief administrative officers, the secretary of the senate (Secretary) and the chief clerk of the house of representatives (Clerk). In response to some requests, senate and house counsel stated that the legislature did not possess responsive records in light of the definition of "public records" applicable to the legislature. In response to other requests, senate and house counsel and certain individual legislators voluntarily provided limited records. Some records that were provided contained redactions, though no exemptions were identified.

         Members of the news media were not satisfied with the legislative entities' responses. On July 26, members of the news media collectively submitted, via counsel, identical PRA requests to the senate, the house, and all individual legislators. The July 26 requests stated that if the recipients failed to adequately respond, the news media would "be forced to file a lawsuit addressing the PRA violations." Clerk's Papers (CP) at 43, 48, 54, 59. House counsel again responded in a limited capacity, citing the "specific definition of 'public records' [that] applies to the Legislature." CP at 31.

         On September 12, a coalition of news media outlets (collectively News Media Plaintiffs) filed a complaint against the institutional legislative bodies and four individual legislative leaders in their official capacities (collectively Legislative Defendants). The News Media Plaintiffs alleged that the Legislative Defendants violated the PRA by withholding public records. The Legislative Defendants refuted the allegations, arguing that the PRA sets out a narrower public records disclosure mandate specific to the legislative branch, which it argued exempts both its institutional bodies and individual legislators' offices from the PRA's general public disclosure mandate binding on "agencies." In November, the parties filed cross motions for summary judgment. The trial court requested that the state attorney general (AG) file an amicus brief offering its analysis of the issue. The AG amicus brief proffered that individual legislators' offices are "agencies" subject to the PRA's general public records disclosure mandate, while the institutional legislative bodies are not.

         On January 19, 2018, the trial court granted in part and denied in part each party's motion for summary judgment, ruling in line with the AG's analysis. The Legislative Defendants petitioned this court for direct discretionary review and filed a motion to stay the order; the News Media Plaintiffs filed a cross motion for direct discretionary review. The trial court granted a joint motion to certify questions of law to this court. Our Commissioner granted first the stay and later the motions for direct discretionary review.

         ISSUES

         I. Are individual legislators' offices "agencies" for purposes of the PRA and therefore subject to the PRA's general public records disclosure mandate?

         II. Are institutional legislative bodies "agencies" for purposes of the PRA and therefore subject to the PRA's general public records disclosure mandate?

         ANALYSIS

         We review de novo questions of statutory interpretation and challenges to agency actions under the PRA. RCW 42.56.550(3); Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002); City of Federal Way v. Koenig, 167 Wn.2d 341, 344, 217 P.3d 1172 (2009). We also review de novo summary judgment orders, undertaking the same inquiry as the trial court and viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

         Under rules of statutory interpretation, we must "ascertain and carry out the Legislature's intent, and if the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent." Campbell & Gwinn, 146 Wn.2d at 9-10. Plain "meaning is discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question." Id. at 11. "Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous." Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996). Only if the statute remains ambiguous-that is, "susceptible to more than one reasonable meaning"-is it appropriate to resort to legislative history. Campbell & Gwinn, 146 Wn.2d at 12.

         "The PRA is 'a strongly worded mandate for broad disclosure of public records.'" Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 408, 259 P.3d 190 (2011) (plurality opinion) (quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978)). The PRA's general public records disclosure mandate requires that "[e]ach agency . . . shall make available for public inspection and copying all public records." RCW 42.56.070(1) (emphasis added). The PRA defines "agency" as including "all state agencies." RCW 42.56.010(1). The PRA defines "state agency" in turn as including "every state office, department, division, bureau, board, commission, or other state agency." Id. The PRA does not expressly define "state office" or the other terms enumerated in the definition of "state agency." Neither does the PRA expressly indicate whether individual legislators or the senate, the house, and the legislature as a whole are "agencies" for purposes of the PRA.

         Notably, the PRA provides an exception to the general public records disclosure mandate for the Secretary and the Clerk. While the PRA defines "public record" as "any writing containing information relating to the conduct of government," a narrower definition applies to the Secretary and the Clerk:

For the office of the secretary of the senate and the office of the chief clerk of the house of representatives, public records means legislative records as defined in RCW 40.14.100 and also means the following: All budget and financial records; personnel leave, travel, and payroll records; records of legislative sessions; reports submitted to the legislature; and any other record designated a public record by an official action of the senate or the house of representatives.

RCW 42.56.010(3). Additionally, the PRA distinguishes the Secretary and the Clerk from "agencies" by repeatedly referring to an "agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives." RCW 42.56.070(8), .100, .120; see Whatcom County, 128 Wn.2d at 546. In effect, the PRA establishes a narrower public records disclosure mandate for the Secretary and the Clerk.

         Though the PRA sets out a narrower mandate for the Secretary and the Clerk, it does not expressly indicate whether that mandate encompasses records generated by individual legislators' offices and/or the institutional legislative bodies. However, the Secretary and the Clerk serve as the chief administrative officers for their respective chambers, responsible for classifying, arranging, maintaining, and preserving legislative records. RCW 40.14.130; see also RCW 40.14.140 ("It shall be the duty of the clerk and the secretary to advise the party caucuses in each house concerning the necessity to keep public records."). Because the offices of the Secretary and the Clerk exist to support the legislature's administrative functions, their narrower public records disclosure mandate clearly attaches to legislative entities in some capacity.

         The issues before us thus boil down to which legislative entities are subject only to the narrower public records disclosure mandate by and through the Secretary and the Clerk, and which, if any, legislative entities are "agencies" subject to the PRA's general public records disclosure mandate. For purposes of this analysis, we consider each of the two classes of legislative entities in turn: individual legislators' offices on the one hand and the institutional legislative bodies on the other.

         I. Individual Legislators' Offices

         Individual legislators' offices are plainly "agencies" for purposes of the PRA in light of a closely related statute, former RCW 42.17A.005 (2011). Former RCW 42.17A.005 is the definitions section of the campaign disclosure and contribution law (CDC), ch. 42.17A RCW. The laws that are today the CDC and the PRA were enacted via initiative as a single law, the Public Disclosure Act. LAWS OF 1973, ch. 1 (Initiative 276, approved Nov. 7, 1972). For 35 years, these twin pillars of open government law were codified together within an omnibus chapter, former ch. 42.17 RCW (2002). See LAWS OF 2005, ch. 274, §§ 101-103. The CDC and the PRA thus exemplify "related statutes." Campbell & Gwinn, 146 Wn.2d at 11.

         The CDC and the PRA continue to share identical definitions of "agency" and "state agency": "'Agency' includes all state agencies .... 'State agency' includes every state office." Former RCW 42.I7A.OO5(2); RCW 42.56.010(1). Significantly, the CDC goes on to expressly define "state office" as including "state legislative office," and "legislative office" as including "the office of a member of the state house of representatives or the office of a member of the state senate." Former RCW 42.I7A.OO5(44), (29). Thus, the offices of individual legislators are unequivocally "agencies" under the CDC. Given that former RCW 42.17A.005 is closely related and "disclose[s] legislative intent about the provision in question," Campbell & Gwinn, 146 Wn.2d at 11, we conclude that individual legislators' offices are plainly and unambiguously "agencies" for purposes of the PRA as well.

         Legislative history, though unnecessary to discern the plain meaning of the statute, nonetheless supports our conclusion. To begin with, both the campaign finance reporting provisions that became the CDC and the public records disclosure provisions that became the PRA were codified together within the omnibus chapter when the definitions of "state office" and "state legislative office" were added to the definitional chain of "agency" in 1995. See LAWS OF 1995, ch. 397, § 1. Those provisions remained codified together for 10 years thereafter. See LAWS OF 2005, ch. 274. During that time, the definition of "agency" as expressly including individual legislators' offices applied with equal force to all provisions in the omnibus chapter. State v. Sullivan, 143 Wn.2d 162, 175, 19 P.3d 1012 (2001) ("Legislative definitions provided by the statute are controlling.").

         In 2005, the legislature recodified the public records disclosure provisions into a separate chapter, the PRA. LAWS OF 2005, ch. 274, §§101-103. Rather than establishing independent definitions for the newly minted PRA, however, the legislature incorporated by reference the definitions of the omnibus chapter. LAWS OF 2005, ch. 274, § 101 ("The definitions in RCW 42.17.020 apply throughout this chapter."). Thus, even after the PRA was separated into its own chapter, the operative definition of "agency" expressly continued to include individual legislators' offices.

         Not until 2007 did the legislature amend the PRA to add a definitions section, eliminating the incorporation by reference of the omnibus chapter's definitions. LAWS OF 2007, ch. 197, § 1. The 2007 amendment imported word for word into the PRA the omnibus chapter's definition of "agency," which remains unaltered; the rest of the definitional chain was not imported. See id.; RCW 42.56.010.[1]

         The Legislative Defendants argue that the 2005 and 2007 amendments divested individual legislators' offices of the PRA's general public records disclosure mandate. In their view, the amendments "signal purposeful changes" and a "deliberate exclusion" of legislative offices from the PRA's definition of "agency." Wash. State Legislature's Opening Br. at 22. They characterize the 2005 amendment as a "substantive step to distinguish the PRA from" the CDC and argue that the 2007 amendment "'cannot be viewed as accidental.'" Id. at 22, 25 (quoting Jametsky v. Olsen, 179 Wn.2d 756, 766, 317 P.3d 1003 (2014)).

         Because the meaning of "agency" as pertains to individual legislators' offices is plain, the Legislative Defendants' reliance on legislative history is premature, even if it supported their claim, which it does not. The 2005 amendment was not intended to effect any substantive change, much less a change as dramatic as the exemption of all individual legislators from the PRA's general public records disclosure mandate. House bill reports were clear that the 2005 recodification of the PRA effected "no substantive change." H.B. REP. ON SUBSTITUTE H.B. 1133, at 2-3, 59th Leg., Reg. Sess. (Wash. 2005). "No exemptions [we]re modified, deleted, or added." FINAL B. Rep. on Substitute H.B. 1133, at 2, 59th Leg., Reg. Sess. (Wash. 2005).

         The exemption of any government entity from the PRA's general public records disclosure mandate constitutes a major political action, one that cannot be achieved through mere attrition, as the Legislative Defendants in effect posit. See Bainbridge Island Police Guild, 172 Wn.2d at 408; Freedom Found, v. Gregoire, 178 Wn.2d 686, 695, 310 P.3d 1252 (2013) ("To preserve the PRA's broad mandate for disclosure, [we] construe[] its provisions liberally and its exemptions narrowly."). The PRA specifically included individual legislators' offices in the definitional chain of "agency" before and after the PRA was separated into its own chapter. Neither the 2005 nor 2007 amendments broke that chain. Without more-such as notice to the electorate that legislators were attempting to exempt themselves from the PRA- neither amendment was sufficient to accomplish that feat.

         The Legislative Defendants also argue that the 2007 amendment "ended this inter-chapter 'borrowing'" of definitions, which this court should "not reinstate." Wash. State Legislature's Opening Br. at 25. However, this case is distinguishable from past cases where we have rejected "borrowing" the definition of a term from one statute to interpret the same term in a different statute. In State v. Barnes, 189 Wn.2d 492, 496-97, 403 P.3d 72 (2017), we declined to borrow the definition of "motor vehicle" from a transportation statute to interpret the same term in a criminal statute. In Davis v. Department of Licensing, 137 Wn.2d 957, 964, 977 P.2d 554 (1999), we declined to borrow the definition of "juvenile" from a juvenile justice statute to interpret the same term in a controlled substances statute.

         Unlike the unrelated pairs of statutes rejected for definitional cross-reference in Barnes and Davis, here the PRA and the CDC are profoundly related. For more than three decades, the PRA and the CDC were one law. Until 2007, they shared common definitions. Today they remain housed within the same title and their definitions of "agency" remain identical. Though the legislature ended the PRA's express incorporation of the omnibus chapter's definitions in 2007, rules of statutory interpretation direct us to consider related statutes for purposes of discerning the plain meaning of a provision. Campbell & Gwinn, 146 Wn.2d at 11. This case is like Washington Public Ports Ass 'n v. Department of Revenue, 148 Wn.2d 637, 647-48, 62 P.3d 462 (2003), in which a retail sales tax statute "clarif[ied] the plain meaning" of a "closely related" leasehold excise tax statute housed within the same title. Here, the CDC is closely related and clarifies the PRA's plain meaning of "agency."

         Finally, the Legislative Defendants argue that by its ordinary meaning, the term "agency" cannot encompass legislators. They point out that the legislature is a branch of government, while an "agency" commonly refers to administrative entities created by the legislature. However, reference to ordinary meaning here is misplaced because "[o]nly where a term is undefined will it be given its plain and ordinary meaning." United States v. Hoffman, 154 Wn.2d 730, 741, 116 P.3d 999 (2005).

         In the context of the PRA, the term "agency" expressly serves as a placeholder for an expansive array of state and local political entities: "every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission," or other state or local agency. RCW 42.56.010(1). Many of these entities fall outside the scope of administrative "agencies" as the term is commonly understood. Nonetheless, all of these and more are "agencies" for purposes of the PRA.

         For example, the CDC and the former omnibus chapter define "state office" as including "the office of governor, lieutenant governor, secretary of state, attorney general, commissioner of public lands, insurance commissioner, superintendent of public instruction, state auditor, or state treasurer," in addition to state legislative offices. Former RCW 42.I7A.OO5(44); LAWS OF 1995, ch. 397, § 1. In Freedom Foundation, we held that the governor's office enjoys an executive communications privilege but is otherwise subject to the PRA's general public records disclosure mandate. 178 Wn.2d. at 697. If, as the Legislative Defendants argue, individual legislators' offices were not "agencies" subject to the PRA's general public records disclosure mandate, then ostensibly neither would be the governor's office or the eight other executive branch entities enumerated in the CDC's definitional chain of "agency" because, like legislative offices, they are not expressly included in the PRA's definition of "agency." Such an interpretation of the PRA would be untenable given long-standing practice regarding the PRA's applicability to executive branch offices. See, e.g., State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990) (stating that unlikely, absurd, or strained interpretations must be avoided).

         In sum, we conclude that under the plain meaning of the PRA, individual legislators' offices are "agencies" subject to the PRA's general public records disclosure mandate. Legislative history confirms rather than contradicts our conclusion. Accordingly, we hold that the News Media Plaintiffs are entitled to judgment as a matter of law on this issue.

         II. Institutional Legislative Bodies

         Institutional legislative bodies, on the other hand, are not "agencies" for purposes of the PRA in light of closely related former RCW 42.17A.005 and relevant legislative history. Instead, we conclude that institutional legislative bodies are subject to the narrower public records disclosure mandate via the Secretary and the Clerk.

         Unlike individual legislators' offices, the senate, the house, and the legislature are not included in the definitional chain of "agency" memorialized in the closely related CDC. See former RCW 42.17A.005(2), (29), (44). This fact alone distinguishes institutional legislative bodies from entities such as the offices of individual legislators and the governor, which are "agencies" subject to the PRA's general public records disclosure mandate. See Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 77 Wn.2d 94, 98, 459 P.2d 633 (1969) (defining the principle of expressio unius est exclusio alterius).

         The News Media Plaintiffs argue that institutional legislative bodies should be considered "agencies" for purposes of the PRA in light of the chapter governing ethics in public service, ch. 42.52 RCW. RCW 42.52.010(1) defines "agency" as including "the state legislature." However, in contrast to the CDC, chapter 42.52 is not closely related to the PRA for purposes of disclosing legislative intent about the meaning of "agency." Whereas the PRA and the CDC were enacted as a single initiative and codified together in an omnibus chapter for 35 years, chapter 42.52 was enacted independently in 1994 and codified separately from the omnibus chapter. LAWS OF 1994, ch. 154. The fact that chapter 42.52 is housed in the same title as the PRA does not alone render it related, nor does it justify replacing the PRA's definition of "agency" with RCW 42.52.010(1). "Legislative definitions generally control in construing the statutes in which they appear, but when the same word or phrase is used elsewhere the meaning depends on common usage and the context in which it is used, unaffected by the other statutory definitions." Childers v. Childers, 89 Wn.2d 592, 598, 575 P.2d 201 (1978). Rather, RCW 42.52.010(1) demonstrates that the legislature knew how to include its institutional bodies in a statutory definition of "agency" and chose not to do so in the PRA or the CDC. We thus conclude that institutional legislative bodies are plainly not "agencies" for purposes of the PRA.

         Legislative history again supports our conclusion. Unlike individual legislators' offices, the senate, the house, and the legislature were never included in the definitional chain of "agency" set out in the omnibus chapter, indicating that the institutional bodies are not subject to the PRA's general public records disclosure mandate. See former RCW 42.17.020(1), (39) (1995); LAWS OF 1995, ch. 397, § 1.

         Notably, though, the legislature did account for the public records disclosure duties of its institutional bodies in the same session law that it expressly recognized individual legislators' offices in the definitional chain of "agency." The 1995 amendment of the omnibus statute established the narrower public records disclosure mandate incumbent on the Secretary and the Clerk as well as the definitions for "state office" and "state legislative office." LAWS OF 1995, ch. 397, § 1(39), (38). If the legislature had intended to include its institutional bodies in the definitional chain of agency, it readily could have done so then. Instead, the 1995 amendment set out a narrower scope of public records for each chambers' chief administrative officer. The senate bill report stated that the "[p]ublic disclosure statutes are amended to specifically address access to and production of public records in the possession of the Senate and the House of Representatives." FINAL B. REP. ON ENGROSSED SUBSTITUTE S.B. 5684, at 2, 54th Leg., Reg. Sess. (Wash. 1995). The report's use of the plural "statutes" suggests that it was describing the new, narrower mandate as well as the addition of definitions delineating individual legislators' offices as "agencies." Id.

         Indeed, it makes sense that the legislature would delegate its institutions' public records disclosure duties to the Secretary and the Clerk because those offices are charged by law with classifying, arranging, maintaining, and preserving records generated by the senate and the house, respectively. RCW 40.14.130. What's more, the "public records" that the Secretary and the Clerk must disclose upon request are "legislative records" that are institutional in nature: they include "records of legislative sessions; reports submitted to the legislature; and any other record designated a public record by an official action of the senate or the house of representatives." RCW 42.56.010(3).

         We therefore conclude that the narrower public records disclosure mandate incumbent on the Secretary and the Clerk inures to the institutional legislative bodies and comprises the extent of their PRA obligations. Though the legislative institutions are not expressly accounted for in the PRA, the CDC, or the omnibus chapter, interpreting that statutory silence as exempting them from any public records disclosure duties whatsoever would be absurd. See Fjermestad, 114 Wn.2d at 835. Instead, we find that the senate, the house, and the legislature as a whole are subject to the PRA through the Secretary and the Clerk, who fulfill the institutions' public records disclosure duties as chief administrative officers for their respective chambers.

         Finally, the News Media Plaintiffs contend that if any class of legislative entities are not "agencies" subject to the PRA's general public records disclosure mandate, "the public will not have a means to obtain those records and such records will fall, in effect, into an inaccessible black hole." Opening Br. of Associated Press et al. at 7. That argument rests fundamentally on public policy, which is the purview of the legislature and should not inform interpretation of the statute. We "should resist the temptation to rewrite an unambiguous statute to suit our notions of what is good public policy, recognizing the principle that 'the drafting of a statute is a legislative, not a judicial function.'" State v. Jackson, 137 Wn.2d 712, 725, 976 P.2d 1229 (1999) (quoting State v. Enloe, 47 Wn.App. 165, 170, 734 P.2d 520 (1987)).

         Even so, the specter of a "black hole" of legislative public records is overblown. The standard governing whether an entity must disclose a public record is whether the record requested is "prepared, owned, used, or retained" by that entity, not simply whether that entity possesses the record at the time of the request. RCW 42.56.010(3). Furthermore, the fact that the public cannot obtain all possible records is not unique to legislative entities but is, instead, a reality inherent to the PRA. Under numerous statutes, various categories of records are exempt from public inspection. E.g., RCW 42.56.210(1) (exempting records "which would violate personal privacy or vital governmental interests"); RCW 70.47.150 (exempting records regarding individuals' medical treatment); RCW 41.06.160 (exempting records regarding salary and fringe benefits rates). As "agencies" subject to the PRA's general mandate, individual legislators' offices are obliged to disclose upon request all public records not otherwise ...


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