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.  

The Record Counts: Properly Asserting and Explaining PRA Exemptions Before and During Litigation

In Gronquist v. Washington State Department of Licensing, the Washington Court of Appeals, Division II, held that the Department of Licensing improperly redacted several items from a business license application prior to disclosure. Citing RCW 42.56.070(1), Licensing argued that the home address, home telephone number, business telephone number, income information, employee information, banking information, and marital status information from a business license application were all exempt from disclosure under three “other statutes” incorporated into the PRA, among other exemptions.

The Court of Appeals disagreed. First, the redacted information was not protected tax information under Department of Revenue statutes. RCW 82.32.330 (return or tax information) did not apply to the redacted information because the statue, in fact, authorizes Revenue to disclose “tax information that is maintained by another Washington state or local governmental agency….” Because Licensing (another agency) held the application, the information was not protected tax information under the Revenue statute. Although the PRA itself also exempts personal tax information collected in connection with an assessment or tax, this exemption did not apply because business license applications do not provide financial information for tax purposes.

Second, Employment Security Department statutes also did not exempt the redacted information. RCW 50.13.020 (employer information or records) did not exempt the applicant’s marital status information because the Employment Security statute exempts only information “obtained by” Employment Security, and the PRA itself limits the scope of this statute to records “maintained by” Employment Security, RCW 42.56.410. Here, Licensing, and not Employment Security, maintained and obtained the business license application. Additionally, the Employment Security statute did not apply because the applicant, operating as a sole proprietorship, was not an “employer.”

Third, under a similar line of reasoning, the Court held that Department of Labor and Industries statutes did not apply. RCW 51.16.070 (employment information) did not exempt information in the application because the applicant was a sole proprietorship, did not have employees, and was not an “employing unit” under the statute.

The Court also held that Licensing failed to provide Gronquist with a proper and timely explanation for its redactions under RCW 42.56.210(3), initially and throughout every stage of litigation. First, Licensing failed to provide any explanation for the redactions in its initial production. Second, the explanation provided by Licensing after Gronquist filed this lawsuit failed to specify what information had been redacted, which exemptions applied to each redaction, or how those exemptions applied. Third, Licensing’s second explanation submitted in connection with in camera review also failed to link specific exemptions to specific redacted items. Finally, on appeal Licensing relied on different exemptions and only sought to explain some of the redactions.

The Court also noted that Licensing took eight business days to respond to Gronquist’s request, making its initial response three days late. Licensing argued that it received Gronquist’s letter on July 31, 2009, that its letter response to Gronquist was dated that same day, and that Gronquist did not controvert these facts in the record. Rejecting these arguments, the Court noted that Licensing submitted a declaration of one of its senior administrators stating that the office received Gronquist’s request “[o]n or about July 21, 2009.”

Although the PRA does not authorize a freestanding penalty for an agency’s failure to provide explanations for withholding records, failure to explain amounts to a “silent withholding” that may aggravate the penalty for wrongfully withholding a record. The Court recommended that these were proper considerations for determining the penalty amount on remand in order to “discourage improper denial of access to public records.”

Under the PRA, Non-Physicians are Peers of Physicians

Responding to complaints about Dr. Cornu-Labat, Quincy Valley Hospital conducted two ad hoc investigations concerning separate allegations of intoxication and incompetency to practice medicine.  The ad hoc investigations failed to uncover enough evidence to substantiate either claim.  However, hospital administrators “remained concerned” for the Doctor, placed him on paid administrative leave, and referred him to the Washington Physicians Health Program.  After Dr. Cornu-Labat refused to visit WPHP, which precluded WPHP from issuing a recommendation on his fitness to practice medicine, the Hospital fired him. 

Dr. Cornu-Labat filed separate Public Records Act requests for documents relating to both investigations.  The Hospital denied the first request, claiming the Hospital was not an agency subject to the PRA and that the records relating to the intoxication investigation were “investigative” and exempt under RCW 42.56.240.  His second, third, and fourth requests sought documents from both investigations, and the Hospital eventually denied those requests under PRA exemptions specific to the healthcare industry. 

The Grant County Superior Court held that the peer review exemption cited by the Hospital did not apply because under RCW 4.24.250 (and RCW 42.56.360) peer review committees must be regularly constituted and consist of professional peers.  The ad hoc investigations here included non-physicians. 

The Washington Supreme Court reversed and held that the plain language of RCW 4.24.250 extended the exemption to committee records of non-physician staff sitting on the committee.  RCW 42.56.360 did not narrow the scope of “peer review committee” for the purposes of exempting records from disclosure under RCW 4.24.250.  Because other peer review statutes allow officers, directors, and employees to sit on review committees, the Hospital’s ad hoc investigations qualified as peer review committees even though non-physicians participated. 

The Court remanded on this issue to determine whether the investigations were a function of regularly constituted committees or whether the investigations were conducted by ad hoc committees not entitled to the exemptions under RCW 4.24.250.  The Court also remanded to determine whether the records sought embodied the proceedings of a formal meeting of the Hospital board (or its staff or agents) concerning the Doctor’s clinical privileges and therefore exempt from disclosure under RCW 70.44.062(1)).  If the records were generated during a general investigation into Dr. Cornu-Labat’s alleged misconduct, then this exemption would not apply. 

Finally, the Court rejected the Hospital’s argument that the confidentiality provision of Dr. Cornu-Labat’s employment contract precluded the Doctor from requesting hospital records involving members of its medical staff.  The Doctor’s identity and his employment contract were irrelevant “because the PRA states that agencies may not inquire into the identity of the requestor or the reason for the request.”  Employment contracts “cannot override the PRA.”  

Production on a "Partial or Installment Basis" Also Means Just One Production

Does a single production constitute production on an installment basis and trigger the PRA’s statute of limitations?  Divisions I and II of the Washington Court of Appeals disagree. 

In Bartz v. Department of Corrections, Division II of the Court of Appeals held that the PRA’s one-year statute of limitations runs even if the agency delivers only one production.  In other words, a single production also means “the last production… on a partial or installment basis.”  A plain reading of the statute might suggest otherwise.  “Actions under this section must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.”  RCW 42.56.550(6). 

Division II reasoned that a literal reading would lead to an absurd result, namely: “a more lenient statute of limitations for one category of PRA requests” after the Legislature shortened the statute from five years to one in 2005. 

Yet, Division I concluded just that.  In Tobin v. Worden, 156 Wn. App. 507 (2010), Division I held that the one-year statute does not apply unless the agency claims an exemption or produces records on installment.  There, the agency did not claim an exemption and produced only a single document.  Because a single production could not be an installment, Division I concluded that the statute did not apply.  

Clarifying Records Request Clarifications - All Clear? Court of Appeals Rules Confused County was Reasonably Confused

Today’s Washington Court of Appeals decision in Levy v. Snohomish County stems from Inmate Percy Levy’s less-than-clear records request to the County Prosecutor’s office:

“While pending trial back in 2002… my attorney provided me with a statement made by my co-defendant Breena Johnson. I want a copy of that statement.”

Perhaps unsurprisingly, the designated public records officer sought clarification from Levy, because the records officer was neither Levy nor his attorney. Today’s decision again points out that agencies managing public records requests are allowed to seek clarification and don't need to be mind readers.

As the records officer tried to clarify and fulfill the request without heedlessly duplicating responses to a previous request that Levy had made, Levy first denied he had made a previous request. Then Levy acknowledged the previous request.

Finally, after 59 days and several rounds of confounding correspondence, Levy was in possession of the two documents he apparently had sought. For its troubles in interpreting Levy’s request and conscientious attempt to not burden an inmate with the cost of paying for records he already had, the County was rewarded with a public records act lawsuit.

Levy’s lawsuit alleged that the County’s request for clarification was unwarranted and that the 59-day “delay” was unreasonable. The Court of Appeals found that the County’s request for clarification was reasonable and that there was no delay. The County did inadvertently omit one document when it finally understood what Levy was requesting, but realized its oversight and sent out the document one day later.

Although the Court does not break new ground, the decision serves as a reminder about the need for diligence and documentation in responding to public records requests. Snohomish County was able to show the patent ridiculousness of Levy’s lawsuit by demonstrating that it promptly responded to every communication from him and was striving to understand his request. This case is another example of inmates using the Washington PRA for other than the act’s intended purpose of fostering public access to documents. Such cases caused the legislature to restrict the rights of inmates under the PRA.

Caught Playing Hooky? Using Public Records Requests to Identify Wisconsin Teachers That "Called in Sick" During February Protests

In February, thousands of protestors, including many teachers, attended rallies in Wisconsin’s capitol to protest Governor Scott Walker’s proposed limits on collective bargaining for public workers.  As a result, schools were closed for a day or more in many districts.  Now conservative groups have filed public records requests asking school districts across the state to release the names of teachers who “called in sick” during the protests.

Many districts have complied, but the Madison School District (“District”), which had four days of closures in February, has denied several public records requests.  As reported by the Wisconsin State Journal, the District is concerned that the release of the teachers’ names could “risk the safety of teachers and students, and disrupt morale and the learning environment in schools.”  The requesting groups deny that the information will be used to harm or harass teachers.  However, the District’s counsel believes otherwise, citing “a number of threats” made against board members, administrators and district employees as a result of teachers’ participation in the protests.

Some districts have successfully prevented disclosure of teachers’ names. The Wisconsin Education Association Council argued on behalf of the La Crosse and Holmen School Districts that safety risks outweighed the benefits of disclosure, obtaining an injunction from a La Crosse Circuit Court Judge.

Wisconsin’s Public Records laws do not include a disclosure exemption for general safety concerns. There is an exemption for specific employee records, including “personally identifiable information” such as addresses, phone numbers and social security numbers. Sec. 19.36(1) of the 2003 Wisconsin Act 47.  However, the requestors in this case seek only names, not identifying information.

When there is no established exemption (by statute or common law) and a public records custodian has doubts or concerns about whether to release records, Wisconsin courts perform a balancing test. Sec. 19.35(1)(a).  Records may be withheld only if the public interest in nondisclosure outweighs the public interest in disclosure, as there is a strong presumption of access.  See Matter of Estates v. Zimmer, 151 Wis. 2d 122 (Wis. Ct. App. 1989).

It remains to be seen how the court will balance the competing interests in this case, and whether the District’s safety argument will outweigh the presumption of disclosure that is central to the Wisconsin Public Records Act.

Washington’s Public Records Act is similar, in that there is no blanket exemption for safety or privacy. To prevent disclosure out of concerns for privacy or safety, an agency must prove that disclosure of the information 1) would be highly offensive to a reasonable person, and 2) is not of legitimate concern to the public.  RCW 42.56.050.  Specific personal identifying data is, of course, exempt from disclosure. RCW 42.56.210.  However, names must generally be disclosed.  See John Doe No. 1 v. Reed, __ U.S. ___, 130 S. Ct. 2811, 177 L.Ed.2d 493 (2011) (finding that Washington’s public records act authorized the release of the names of voters who signed referendum petitions); King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002) (holding that public records act does not exempt from disclosure the full names and ranks of county police officers).

An article in the May 26, 2011 Seattle Times highlights a recent Seattle “name release” case.  A labor arbitrator, acting at the request of the Seattle Police Officers’ Guild, just ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct.  It is reported that the city attorneys plan to appeal, believing the decision is in conflict with Washington law.
 

Clash of Principles: Academic Freedom v. Freedom of Information

The March 30 edition of the New York Times reports that a research group in Michigan has made a public records request of the University of Michigan, Michigan State University and Wayne State University for any e-mails involving the Wisconsin labor turmoil, including any e-mails with reference to Rachel Maddow – the MSNBC talk show host.

Greg Schulz, the director of academic freedom for the American Association of University Professors is quoted as asserting “We think this will have a chilling effect on academic freedom. We’ve never seen FOIA requests used like this before.”

In the State of Washington, however, the issue of academic freedom v. freedom of information has long been decided in favor of the freedom of information. In 1994 the Washington Supreme Court held that documents regarding research proposals for primate experiments that didn’t fall within specific statutory exemptions were subject to disclosure under the State’s Public Records Act – despite the contention of the University of Washington that academic freedom protected those records from disclosure. Progressive Animal Rights Society (PAWS) v. University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1994).

In PAWS, the Washington Supreme Court directly addressed the University’s argument that “the grant proposal should be exempt in its entirety because disclosure of a researcher’s preliminary ideas violates a putative constitutional privilege of academic freedom.” Rejecting that argument, the Court held that neither the popular initiative that first adopted Washington’s Public Record Act nor the legislature in later amendments had created an exemption from the Public Records Act for academics. Further the Court noted that, “Even assuming there were plausible grounds for doing so, it would be difficult to grant special First Amendment protection to public university employees while denying it to other state employees.”

On the other hand, both the trial court and the Supreme Court held that information in the proposal that would reveal research hypothesis, data, valuable formula and the like should be redacted from the documents as they are covered by exemptions to the Public Records Act. The Court also excluded the peer review “pink sheets” from disclosure, as they were documents reflecting a deliberative process for an unsuccessful proposal and thus exempt under the “deliberative process” exemption. But, the Court also noted “Once the proposal becomes funded, it clearly becomes ‘implemented’ for purposes of this exemption and the pink sheets thereby become disclosable.”