A Washington Court of Appeals held that the Public Employees’ Collective Bargaining Act, chapter 41.56 RCW (PECBA), is not an “other statute” exempting records from disclosure under the Public Records Act, chapter 42.56 RCW (PRA), because the PECBA does not “expressly prohibit or exempt the release of specific records or information.” SEIU 775 v. Freedom Found., No. 48881-7-II (Apr. 25, 2017). This case represents the latest in a string of PRA disputes between local chapters of SEIU and the Freedom Foundation. In two opinions issued in 2016 (see here and here), the court addressed two separate disputes over the “commercial purposes” exemption of the PRA, RCW 42.56.070(9). SEIU is the union representing the individual workers who deliver personal care services to functionally disabled persons.

This latest lawsuit arose out of the Freedom Foundation’s request for Department of Social and Health Services (DSHS) records regarding the times and locations of trainings and meetings for the workers. The meetings were held at state facilities and not open to the public; and, DSHS provided time for SEIU to meet with the workers at these meetings. After receiving notice of the Freedom Foundation’s request from DSHS, SEIU sought to enjoin release of the records, concerned that the Freedom Foundation intended to show up at these meetings to discourage the workers from participating in the union.

Continue Reading Washington Court Holds Public Employees’ Collective Bargaining Act Does Not Exempt Information from Public Disclosure

A Washington Court of Appeals recently addressed this question in a case involving a request from the Freedom Foundation to a state agency for lists of names of home healthcare workers and their contact information. The union representing the workers opposed the disclosure. SEIU Healthcare v. DSHS and Freedom Foundation (No. 446797-6-II, April 12, 2016). The State’s Public Records Act (PRA) “shall not be construed as giving authority to any agency . . . to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies . . . shall not do so unless specifically authorized or directed by law.” RCW 42.56.070(9). The union argued this provision prohibited disclosure, and was not just an exemption from disclosure. The Court rejected the argument, finding “the distinction between an exemption and a prohibition largely is immaterial. [Another section of the PRA] does not distinguish between the two, referring to any other statute that ‘exempts or prohibits’ disclosure. . . . We conclude that RCW 42.56.070(9) must be construed in favor of disclosure regardless of whether [RCW 42.56.070(9)] states an exemption or prohibition.”

Continue Reading What is an Agency’s Obligation When a Records Request May Suggest Requester’s “Commercial Purpose”?

Abandoned Claims.  In West v. Gregoire, Division II of the Court of Appeals held that a PRA requestor who moves for a show cause order under RCW 42.56.550(1) abandons any claims he or she does not either (1) address in briefing, (2) mention in oral argument, or (3) otherwise specifically preserve for judicial review.  Arthur West submitted a public records request to Governor Gregoire’s office.  After providing West an initial five‑day letter, the Governor’s office did not further communicate for several months.  And when it did, it asserted executive privilege (which was later upheld in Freedom Foundation v. Gregoire).  West sued, claiming that executive privilege should not be recognized in Washington.

Some months later, West brought a show cause motion, but failed to mention in the motion or at oral argument his other PRA claims (notably, his claim that the Governor’s initial delay in production was unreasonable).  Citing the detailed show cause procedures under RCW 42.56.550(1) and the public policies in favor of judicial economy and against piecemeal litigation, the court held that a .550(1) show cause hearing can function as a PRA claimant’s trial.  Any PRA issue not mentioned or otherwise expressly preserved in a .550(1) show cause motion is abandoned, just like any civil claimant’s allegation not mentioned in the pleadings, not raised in response to a summary judgment motion, or unsupported at trial, is deemed abandoned.

Continue Reading Recent PRA Litigation Missteps: Abandoned Claims, False Starts

The Libertarian group Freedom Foundation has recently filed suit against Washington Governor Christine Gregoire, alleging that the Governor withheld public records under an “Executive Privilege” exemption not found in the text of Washington’s Public Records Act (“PRA”), 42.56 RCW.

According to the Foundation’s website, the suit was commenced after a member of the Foundation requested documents from the Governor’s Office in April 2010, including records dealing with “medical marijuana legislation, Alaskan Way Viaduct replacement proposals, and the Columbia River hydro system.” The complaint seeks production of the requested records (some of which were withheld or redacted), attorneys’ fees and penalties for violating the PRA. The complaint only addresses the Governor’s response to the April 2010 request; however the Freedom Foundation has also alleged that since 2007, Gregoire has used the executive privilege 500 times in efforts to withhold records.

Continue Reading No Freedom for Executives? Freedom Foundation Sues Washington Governor Christine Gregoire Over Documents Withheld Under “Executive Privilege”