Anti-SLAPP Statute Held Inapplicable to PRA Injunction Actions that Do Not Primarily Seek to Limit Protected Activities
In a much‑anticipated Public Records Act case, the Washington Court of Appeals, Division I, held in Egan v. City of Seattle that PRA requests do not constitute constitutionally protected speech subject to the protections of the state’s anti‑SLAPP statute.
James Egan submitted a Public Records Act request for certain internal investigation records, including 36 “dash‑cam” videos, from the Seattle Police Department. The City of Seattle withheld 35 of those videos, claiming that a specific provision of the state’s privacy statute (RCW 9.73.090(1)(c)) prohibited the City from releasing the videos until final disposition of a pending lawsuit arising from the recorded events.
Egan disputed that the exemption applied and threatened to sue. Under the PRA’s injunction statute, RCW 42.56.540, the City moved to enjoin release of the videos and for declaratory judgment that the records were exempt from disclosure. Egan then filed a motion to strike under Washington’s anti‑SLAPP statute, RCW 4.24.525, arguing that the City sought to chill his right to public participation and petition with its injunction action.
The anti‑SLAPP statute helps to protect a defendant’s exercise of First Amendment rights by providing a damages remedy for retaliatory litigation, otherwise known as “strategic lawsuits against public participation.” In order to prevail on an anti‑SLAPP motion, a defendant must first establish by a preponderance of the evidence that the claim is based on an action involving public participation or petition. Egan argued that the anti‑SLAPP statute applied because the City moved to enjoin Egan’s PRA request based on his “threat” to sue.
The Court disagreed. The right to access public records is purely statutory. It is not granted by the state or federal constitutions or compelled by the First Amendment. Here, the City’s injunction action was not based on Egan’s threat to sue (protected speech), but instead it was based on the parties’ underlying controversy about whether the privacy statute applied as an exemption to Egan’s PRA request. Because the purpose of City’s injunction action was to determine an underlying controversy, as opposed to suppressing Egan’s right to sue under the PRA, the Court held that the anti‑SLAPP statute did not apply.