Associated Press v. Wash. State Legislature ( 2019 )

T
IN CLERKS OFFICE
This opinion was
filed for record
cuPREaE coufa.sinE OF wASMNerni
aW)t(on7hAfi"'?
DATE.
kjyjyf/sf . Susan L. Carlson
CHIEF JUSTKe
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
THE ASSOCIATED PRESS,NORTHWEST
NEWS NETWORK,KING-TV ("KING 5"),
KIRO 7, ALLIED DAILY NEWSPAPERS No. 95441-1
OF WASHINGTON,THE SPOKESMAN-
REVIEW, WASHINGTON NEWSPAPER En Banc
PUBLISHERS ASSOCIATION,SOUND
PUBLISHING,INC., TACOMANEWS,
INC.("THE NEWS TRIBUNE"), and THE Filed DEC I 9
SEATTLE TIMES,
Respondents/Cross-Petitioners,
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.
Associated Press et al. v. Legislature et al, No. 95441-1
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 ROW. To resolve this question, we must decide
whether each ofthe two classes oflegislative entities constitute "ageneies" for
purposes ofthe PRA:the offices of individual legislators on the one hand and the
institutional bodies ofthe senate, house of representatives, and legislature as a whole
on the other. We hold that under the plain meaning ofthe 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 ofthe news media submitted 163 PRA requests to the state
senate, the house ofrepresentatives, 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 ofthe chambers' chief administrative officers,
the secretary ofthe senate (Secretary) and the chief clerk ofthe house ofrepresentatives
2
Associated Press et al. v. Legislature et al, No. 95441-1
(Clerk). In response to some requests, senate and house counsel stated that the
legislature did not possess responsive records in light ofthe 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 ofthe news media were not satisfied with the legislative entities'
responses. On July 26, members ofthe 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 defmition 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
3
Associated Press et al. v. Legislature et al, No. 95441-1
judgment. The trial court requested that the state attorney general(AG)file an amicus
brief offering its analysis ofthe 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 ajoint motion to certify questions oflaw 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 ofthe PRA and
therefore subject to the PRA's general public records disclosure mandate?
II. Are institutional legislative bodies "agencies" for purposes ofthe 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 ofEcology v. Campbell &
Gwinn, LLC, 146 Wash. 2d 1, 9, 43 P.3d 4(2002); City ofFederal Way v. Koenig, 167
Wash. 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
4
Associated Press et al. v. Legislature et a/., No. 95441-1
reasonable inferences in the light most favorable to the nonmoving party. Hisle v.
ToddPac. Shipyards Corp., 151 Wash. 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 Wash. 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 ofBellingham, 128 Wash. 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 Wash. 2d at 12.
"The PRA is 'a strongly worded mandate for broad disclosure of public
records.'" Bainbridge Island Police Guild v. City ofPuyallup, 172 Wn.2d 398,408,
259 P.3d 190(2011)(plurality opinion)(quoting Hearst Corp. v. Hoppe,90 Wash. 2d
123, 127, 580 P.2d 246 (1978)). The PRA's general public records disclosure
mandate requires that "[ejach agency . . . shall make available for public inspection
and copying all public records." RCW 42.56.070(1)(emphasis added). The PRA
5
Associated Press et al. v. Legislature et a/., No. 95441-1
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 ofthe 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 ofthe secretary ofthe senate and the office ofthe 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 ofthe 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 ofthe secretary of
the senate, or the office ofthe chief clerk ofthe house of representatives." RCW
42.56.070(8),.100,.120; see Whatcom County, 128 Wash. 2d at 546. In effect, the PRA
establishes a narrower public records disclosure mandate for the Secretary and the
Clerk.
Associated Press et al. v. Legislature et a/., No. 95441-1
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 ofthe 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 ofthe PRA in
light of a closely related statute, former RCW 42.17A.005 (2011). Former RCW
42.17A.005 is the definitions section ofthe campaign disclosure and contribution law
(CDC), ch. 42.17A RCW. The laws that are today the CDC and the PRA were
7
Associated Press et al. v. Legislature et al.. No. 95441-1
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 Wash. 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 42.17A.005(2); RCW 42.56.010(1). Significantly,
the CDC goes on to expressly define "state office" as ineluding "state legislative
office," and "legislative office" as including "the office of a member ofthe state
house ofrepresentatives or the office of a member ofthe state senate.' Former RCW
42.17A.005(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 Wash. 2d at 11, we conclude that individual legislators' offices are plainly
and unambiguously "agencies" for purposes ofthe PRA as well.
Legislative history, though unnecessary to discern the plain meaning ofthe
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 orrmibus chapter
when the definitions of"state office" and "state legislative office" were added to the
8
Associated Press et al. v. Legislature et al. No. 95441-1
definitional chain of"agency" in 1995. 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. Sullimn, 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 ofthe 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 ofthe 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
ofthe definitional chain was not imported. See id.; RCW 42.56.010.'
'In 2010, the legislature amended the PRA and the CDC in the same session law, reeodifying
the CDC into its own chapter, ch. 42.17A RCW,distinct from the omnibus chapter, which is now
defunct. Laws of 2010, ch. 204, § 1102.
Associated Press et al. v. Legislature et a/., No. 95441-1
The Legislative Defendants argue that the 2005 and 2007 amendments divested
individual legislators' offices ofthe 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 Wash. 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 ofthe 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 Wash. 2d at 408; Freedom Found, v. Gregoire, 178
10
Associated Press et al. v. Legislature et a/., No. 95441-1
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 ofLicensing, 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
11
Associated Press et al. v. Legislature et ah. No. 95441-1
"agency" remain identical. Though the legislature ended the PRA's express
incorporation ofthe 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 Wash. 2d at 11. This case is like
Washington Public Ports Ass'n v. Department ofRevenue, 148 Wn.2d 637,647-48,
62 P.3d 462(2003), in which a retail sales tax statute "clariftied] 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 Wash. 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 ofthese entities fall outside the scope of
administrative "agencies" as the term is commonly understood. Nonetheless, all of
these and more are "agencies" for purposes ofthe PRA.
12
Associated Press et al. v. Legislature et al. No. 95441-1
For example,the CDC and the former omnibus chapter define "state office" as
including "the office of govemor,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 42.17A.005(44); LAWS OF 1995, ch. 397, § 1. Jn 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 ofthe PRA would be untenable
given long-standing practice regarding the PRA's applicability to executive branch
offices. See, e.g.. State v. Fjermestad, 114 Wash. 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 ofthe 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 oflaw on this issue.
13
Associated Press et al. v. Legislature et al. No. 95441-1
II. Institutional Legislative Bodies
Institutional legislative bodies, on the other hand, are not "agencies for
purposes ofthe 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. Nee 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 ofSnohomish County,11 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 ofthe PRA in light ofthe 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
14
Associated Press et al. v. Legislature et a/., No. 95441-1
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 Wash. 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 ofthe 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 ofthe omnibus statute established the narrower public records disclosure
mandate incumbent on the Secretary and the Clerk as well as the definitions for "state
15
Associated Press et al. v. Legislature et al, No. 95441-1
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 aniendment 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. ROW 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 ofthe senate or the house of
representatives." RCW 42.56.010(3).
16
Associated Press et al. v. Legislature et at., No. 95441-1
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 Wash. 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
ofthe 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" oflegislative public records is
overblown. The standard governing whether an entity must disclose a public record is
17
Associated Press et al. v. Legislature et a/., No. 95441-1
whether the record requested is "prepared, owned, used, or retained" by that entity,
not simply whether that entity possesses the record at the time ofthe 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 exempted from public inspection. Thus, all
conceivable categories of nonexempt legislative records are obtainable either from the
institutional legislative bodies via the Secretary or the Clerk, or from individual
legislators' offices.
In sum, we conclude that under the plain meaning ofthe PRA,institutional
legislative bodies are not "agencies" but are instead subject to the narrower public
records disclosure mandate by and through the Secretary and the Clerk. Legislative
history bolsters that interpretation because the senate, the house, and the legislature
have never been included in the definitional chain of"agency" for purposes ofthe
PRA. Accordingly, we hold that the Legislative Defendants are entitled to judgment
as a matter of law on this issue.
18
Associated Press etal. v. Legislature et al, No. 95441-1
CONCLUSION
We hold that under the plain meaning ofthe PRA,individual legislators'
offices are "agencies" subject to the PRA's general public records disclosure mandate
because they are included in the definitional chain of"agency, as illuminated by the
closely related former ROW 42.17A.005. We further hold that the senate, the house,
and the legislature are not "agencies" because the institutional legislative bodies are
not included in the definitional chain of"agency," nor were they at any point.
Accordingly, we affirm the trial court and remand for further proceedings.
19
Associated Press, et al. v. Legislature, et al., No. 95441-1
WE CONCUR:
�3--.
20
Associated Press et al. v. Wash. State Legislature, et al.
(Stephens, J., concurring in part/dissenting in part)
No. 95441-1
STEPHENS, J. (concurring in part/dissenting in part)—^In passing Initiative
276,the people of Washington intended the mandate of public disclosure to govern
the legislature—including the house and senate, as well as individual legislators and
their respective offices. The question before us is whether the legislature has since
narrowed the people's mandate through a series ofamendments to the former public
disclosure act (PDA), ch. 42.17 RCW, now recodified as the Public Records Act
(PRA),ch. 42.56 RCW. The legislature contends its amendments show a plain intent
to remove itself fi-om the general disclosure requirements applicable to "a// state
agencies" under the PRA. RCW 42.56.010(1)(emphasis added). It specifically
claims it no longer meets the definition of "agency." Because I would hold the
legislature remains an "agency" subject to the PRA,I respectfully dissent.
Associated Press et al. v. Wash. State Legislature et at., 95441-1
(Stephens, J., concurring in part/dissenting in part)
ANALYSIS
A. Background and Principles ofInterpretation
In 1972, Washingtonians enacted the PDA by initiative. Laws of 1973, ch. 1
(Initiative 276, approved Nov. 7, 1972); see also Fritz v. Gorton, 83 Wash. 2d 275,
284, 517 P.2d 911 (1974) (plurality opinion) (noting "the electorate adopted
Initiative 276 ... by a substantial majority of the votes cast"). "An exercise of the
initiative power is an exercise of the reserved power of the people to legislate."
Amalg. Transit Union Local 587 v. State, 142 Wn.2d 183,204, 11 P.3d 762,27 P.3d
608(2000). "In approving an initiative measure,the people exercise the same power
of sovereignty as the Legislature does when enacting a statute." Id. And, today,
"[t]he Washington public [records] act [remains] a strongly worded mandate for
broad disclosure of public records." Hearst Corp. v. Hoppe, 90 Wash. 2d 123, 127,
580 P.2d 246 (1978); Fortgang v. Woodland Park Zoo, 187 Wash. 2d 509, 512, 387
P.3d 690(2017). The statute states:
The people of this state do not yield their sovereignty to the agencies that
serve them. The people, in delegating authority, do not give their public
servants the right to decide what is good for the people to know and what is
not good for them to know. The people insist on remaining informed so that
they may maintain control over the instruments that they have created.
RCW 42.56.030. Thus, we must construe the PRA liberally—and its exemptions
narrowly—^to promote this public policy and to ensure that the public interest will
-2-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
be fully protected. Id. In reviewing the PRA,we must "take into account the policy
... that free and open examination of public records is in the public interest, even
though such examination may cause inconvenience or embarrassment to public
officials or others." RCW 42.56.550(3).
"'[I]n determining the meaning of a statute enacted through the initiative
process, the court's purpose is to ascertain the collective intent of the voters who,
acting in their legislative capacity, enacted the measure.'" Bellevue John Does 1-11
V. Bellevue Sch. Dist. No. 405, 164 Wash. 2d 199, 210, 189 P.Sd 139(2008)(quoting
Amalg. Transit, 142 Wash. 2d at 205). We read an initiative in light of its various
provisions, rather than in a piecemeal approach, in relation to the surrounding
statutory scheme, and we strive to give effect to all the language in the statute. Am.
Legion Post No. 149 v. Dep't ofHealth, 164 Wash. 2d 570, 585, 192 P.3d 306(2008).
"Where the voters' intent is clearly expressed in the statute, the court is not required
to look further." Amalg. Transit, 142 Wash. 2d at 205. Thus,"[wjhere the language
of an initiative enactment is 'plain, unambiguous, and well understood according to
its natural and ordinary sense and meaning, the enactment is not subject to judicial
interpretation [or construction]."' Id. at 205 (quoting State v. Thorne, 129 Wash. 2d
736, 762-63, 921 P.2d 514(1996)).
-3-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
When necessary to interpret an initiative's meaning, we read the language of
the enactment'"as the average informed lay voter would read it.'" Am. Legion, 164
Wash. 2d at 585(internal quotation marks omitted)(quoting State v. Brown, 139 Wash. 2d
20, 28, 983 P.2d 608 (1999)). And the "[r]ules of statutory construction apply."
Amalg. Transit, 142 Wash. 2d at 205. So, if there is ambiguity in the enactment, we
may examine the statements in the voters' pamphlet to determine the voters' intent
or we may resort to extrinsic aids, such as legislative history, later amendments, or
canons of construction, to determine the legislature's intent. See id. at 205-06.
Finally, we will not substitute our judgment for that of the electorate unless the
initiative violates state or federal constitutional provisions. Id. at 206.
B. The Average Informed Lay Voter Intended the Legislature To Be Subject
to the PDA
We must first determine what the people of Washington originally intended
when they passed the PDA in Initiative 276. Although policy declarations have no
"operative force in and of themselves, [they] serve as an important guide in
determining the intended effect ofthe operative sections." Hearst,90 Wn.2d at 128.
The people described the public policy underlying the PDA with reference to
all levels of government. LAWS OF 1973, ch. 1, § 1(2),(5),(6),(11). For example,
the people made clear that "full access to information concerning the conduct of
-4-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
government on every level must be assured as a fundamental and necessary
precondition to the sound governance of a free society." Id. § 1(11) (emphasis
added).
The people defined "agency," as it remains today, to "include[] all state
agencies and all local agencies." Id. § 2(1). And they defined "state agency" to
"include[] every state office, public official, department, division, bureau, board,
commission or other state agency." Id. They did not otherwise define any of the
terms in the definition of "state agency." See generally id. The Nast court aptly
observed,"These are very broad definitions." Nast v. Michels, 107 Wn.2d 300,305,
306-07, 730 P.2d 54 (1986) (noting that these definitions could be reasonably
interpreted to include court case files but holding that the PDA does not apply to
court case files because (1)the common law provides access,(2)the PDA does not
specifically include courts or court case files within its definitions, and (3)such an
interpretation would undo all the developed law protecting privacy and
governmental interests); see also City ofFederal Way v. Koenig, 167 Wash. 2d 341,
349, 217 P.3d 1172 (2009)(Korsmo, J. Pro Tem., concurring) ("The[se] broad
definition[s] brook[] no exceptions.").
Besides the obvious breadth ofthe definitions of agency, the use of the word
"include" generally "signal[s] that the list that follows is meant to be illustrative
-5-
Associated Press et al. v. Wash. State Legislature et al., 95441-1
(Stephens, J., coneurring in part/dissenting in part)
rather than exhaustive." Samantar v. Yousuf, 560 U.S. 305, 317, 130 S. Ct. 2278,
176 L. Ed. 2d 1047(2010)(citing 2A Norman J. Singer & J.D. Shambie Singer,
Sutherland on Statutory Construction § 47.7, at 305 (7th ed. 2007)('"The
word "includes" is usually a term of enlargement, and not of limitation.'" (quoting
Argosy Ltd. v. Hennigan, 404 F.2d 14, 20 (5^*^ Cir. 1968)))); see also Antonin
ScALiA & Bryan A.Garner,Reading Law:TheInterpretation of Legal Texts
132 (2012)("The verb to include introduces examples, not an exhaustive list."
(boldface omitted)).^ Finally, the catchall phrase "or other state agency" further
signals that the people intended the list to be nonexhaustive.
The PDA as originally drafted plainly includes individual legislators; they are
"public officials" and their respective offices are "state offices." The harder question
is whether the definition of "state agency" incorporates the legislature as an
institution, including the house and the senate. The statute does not expressly
reference the legislature or either bicameral body. It does not list the coordinate
"branches" of government,for instance. Still, on the other hand, it does not exempt
the coordinate "branches" ofgovernment from its nonexhaustive list. The legislative
^ "In normal English usage, if a group 'consists of or 'comprises' 300 lawyers, it
contains precisely that number. If it 'includes' 300 lawyers, there may well be thousands
of other members from all walks of life as well. That is, the word include does not
ordinarily introduce an exhaustive list." SCALIA & GARNER,supra, at 132.
-6-
Associated Press et al. v. Wash. State Legislature et at., 95441-1
(Stephens, J., concurring in part/dissenting in part)
"branch" could reasonably fit into the "other state agency" category. The legislature
could reasonably be interpreted to be a "division" of government, depending on the
particular dictionary one uses and the particular definition one selects. Absent a
plain exemption ofthe legislature from the definition of"state agency," its reach is
ambiguous at most. This is not alarming, as ambiguity is inherent to this type of
open-ended definition, which necessarily renders it susceptible to more than one
reasonable interpretation. The term "state agency" may reasonably incorporate the
legislature and its bicameral bodies, but it equally may not.
The lead opinion cites the canon expressio unius est exclusio alterius to argue
that because the PDA expressly lists various types of governmental entities subject
to the PDA, it intends all others of the same class—^namely, the legislature and its
bicameral bodies and other offices—^to be exempted. Lead opinion at 14. But, as
stated above, the use of the word "includes" and the catchall phrase "or other state
agency" signals that the people intended this list to be nonexhaustive. Cf State v.
Delgado, 148 Wash. 2d 723, 726-29, 63 P.3d 792 (2003) (concluding a particular
statutory list with limiting language was exclusive). Moreover, based on the
definition's syntax, the use of the coordinating conjunction "or" suggests the
nonexhaustive list of governmental entities is disjunctive. See, e.g., Tesoro Ref. &
Mktg. Co. V. Dep't of Revenue, 164 Wash. 2d 310, 319-20, 190 P.3d 28 (2008)
-7-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., eoncurring in part/dissenting in part)
(plurality opinion)(concluding the use of"or" in a particular statutory definition was
disjunctive). Thus, a particular state agency could be one of the types of
governmental entities listed, but it could also be some "other state agency" not listed.
The lead opinion's reliance on the expressio unius canon is misplaced. See, e.g.. In
re Det. ofLewis, 163 Wash. 2d 188, 196-97, 177 P.3d 708 (2008)(holding that the
defendant's reliance on the expressio unius canon was misplaced).
More helpful is the voters' pamphlet for Initiative 276, explaining the PDA's
expansive disclosure requirements:
"The initiative would require all...'public record[s]' of both state and local
agencies to be made available for public inspection and copying by any
person asking to see or copy a particular record .. ." Further, the statement
expressly provided that the law "makes all public records and documents in
state and local agencies available for public inspection and copying" except
those exempted to protect individual privacy and to safeguard essential
governmental functions.
Hearst,90 Wn.2d at 128(alterations in original)(quoting State a/Washington Voters
Pamphlet, General Election 10, 108 (Nov. 7, 1972). But even this statement does
not directly answer whether the people intended the legislature, and its bicameral
bodies and other offices, to be included in the definition of"state agency."
We should therefore consider the policy pronouncements provided in the
initiative to help clarify the voters' intent. The people described the public policy
underlying the PDA several times as intending to reach all levels of government.
-8-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
Laws of 1973, ch. 1, § 1(2), (5), (6), (11). "If the people intended to exempt an
entire branch of government from the reach of the PRA,it would seem that a clear
statement of such intent would be in order." Koenig, 167 Wn.2d at 349(Korsmo, J.
Pro Tem., concurring). But the people made no such statement.
It appears the people thought it wiser to proceed with care: to be general rather
than specific, universal rather than particular. Specificity and particularity would
cut the heart from their broad mandate of assuring "full access to information
concerning the conduct ofgovernment on every level.'' LAWS OF 1973, ch. 1,§ 1(11)
(emphasis added). Given the people's instruction that the PDA "shall be liberally
construed," there is only one tenable conclusion we may reach:the PDA as originally
enacted intended to apply to the legislature, including the house and the senate, as
well as to individual legislators and their respective offices.
C. Relevant Legislative Amendments
Starting with the original intent of the PDA, we must evaluate whether the
legislature subsequently narrowed the people's broad mandate for open government
through a series of amendments.
In 1977, the legislature amended the definition of "agency" to remove the
words "public official." Laws of 1977, ch. 313, § 1(1). This amendment plainly
removed individual legislators from the definition of "state agency," and thus,
-9-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
individual legislators were no longer "agencies" subject to the general requirements
ofthe PDA.
In 1995, the legislature amended other relevant parts of the PDA. Laws OF
1995, ch. 397. The legislature did not amend the definition of"state agency," but
did create a definition for the term "state office," a term in that broader definition.
'"State office' means state legislative office or 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." Laws OF 1995, ch. 397, § 1(39)(emphasis added). The legislature also
created a definition for the term "state legislative office" in the definition of"state
office." '"State legislative office'" means the office ofa member ofthe state house
of representatives or the office of a member of the state senate." Id. § 1(38)
(emphasis added). The amendment thus resolved any ambiguity about the people's
intent for individual legislators' offices, i.e., offices of members ofthe house and the
senate, to be subject to the requirements ofthe PDA.
The legislature also added a sentence to the definition of"public record":
"Public record" includes any writing containing information relating to the
conduct of government or the performance of any governmental or
proprietary function prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics. For the office ofthe
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
-10-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
40.14.100 and also means the following: All budget andfinancial records;
personnel leave, travel, and payroll records; records oflegislative sessions;
reports submitted to the legislature; and any other record designated a
public record by any official action of the senate or the house of
representatives.
Id. § 1(36)(emphasis added). Here, the legislature incorporated by reference the
definition oflegislative records in RCW 40.14.1 GO, which differs from the definition
of public records in the general provisions of the PDA. And the legislature
determined that the secretary and the chief clerk^ were responsible for preservation
of only seven classes of legislative records. Id.\ RCW 40.14.100.
All other classes of public records in the legislature's possession are still
plainly subject to the general definition. Adding the sentence delegating
responsibility to the secretary and the chief clerk for preservation of certain classes
of legislative records in no way worked to narrow the general responsibility of
agencies subject to the general public records requirements of the PDA. The
amendment begins with the phrase "For the office of the secretary and the chief
clerk; this functions only to specify the duties ofthose state offices, not the duties of
other legislative "agencies." It must be understood in connection with RCW
40.14.100, which provides that the secretary and the chief clerk are not obligated to
^ The secretary and the chief clerk are positions authorized by the Washington State
Constitution. Const, art. II, § 10.
-11-
Associated Press et al. v. Wash. State Legislature et at., 95441-1
(Stephens, J., concurring in part/dissenting in part)
preserve "reports or correspondence made or received by or in any way under the
personal control ofthe individual members ofthe legislature." But such "reports or
correspondence" "containing information relating to the conduct of government or
the performance ofany governmental or proprietary function prepared, ovmed,used,
or retained by any state . , . agency" are nonetheless clearly "writings" and thus
"public records." RCW 40.14.100; Laws of 1995, ch. 397, § 1(36), (42). As a
result, imder the amendment, the responsibility for those types of"public records"
falls to the "agency" in control of the records—^that is, the particular office of a
member of the house or senate, or the particular body or other office of the
legislature. If the legislature, including its bicameral bodies and other offices, had
intended to exempt itself in its institutional capacity from responsibility for all other
classes of public records except for legislative records, it did not say so. All it said
was that the secretary and the chief clerk were now responsible for the preservation
of certain classes of legislative records.
In 2005,the legislature observed "that chapter 42.17 RCW [the PDA]contains
laws relating to several discrete subjects." LAWS OF 2005, ch. 274,§ 1. It therefore
amended the PDA and recodified part of it as the PRA,ch. 42.56 RCW. Id. §§ 102,
103. Importantly, all the definitions in former RCW 42.17.020 (2005) still apply
-12-
Associated Press et al. v. Wash. State Legislature et al., 95441-1
(Stephens, J., concurring in part/dissenting in part)
throughout the freshly recast PRA. Id.§ 101. Accordingly,the PRA'srecodification
in its own chapter did not affect the definitions at issue.
In 2007,the legislature amended the PRA to make minor adjustments and add
a discrete definitions section. Laws of 2007, ch. 197, § l(l)-(3). The new
definitions sections comprised only three definitions and contained no cross-
reference to its former definitions section. Id. It defined the terms "agency,"public
record," and "writing." Id. The language of the definitions remained unchanged
from their prior form in former RCW 42.17.020. See id.', of. former RCW
42.17.020(2),(41),(48)(2005). Yet although the term "state office" remained in the
definition of "state agency," it was no longer defined. And therefore the new
definitions section in the PRA no longer contained a definition for "state office" and,
consequently, for "state legislative office."
In 2010,the legislature again amended chapter 42.17 RCW. The amendment
specifically addressed campaign contribution and disclosure laws. It added a new
chapter, ch. 42.17A RCW;created new sections; and repealed and recodified many
statutes. Laws of 2010, ch. 204. It also added a definition for the term "person in
interest" to the PRA. Id. § 1005.
It is with this backdrop in mind that we now turn to the current version ofthe
PRA at issue.
-13-
Associated Press et al. v. Wash. State Legislature et al., 95441-1
(Stephens, J., concurring in part/dissenting in part)
D. Current Statute
The PRA requires each "agency" to make all "public records" available for
public inspection and copying unless the record falls within a specific exemption.
RCW 42.56.070(1).
The PRA defines the terms "agency" and "public records." RCW
42.56.010(1), (3). "The definitions of 'agency' and 'public record' are each
comprehensive on their own and, when taken together, mean the PRA subjects
'virtually any record related to the conduct of government' to public disclosure."
Nissen v. Pierce County, 183 Wash. 2d 863, 874, 357 P.3d 45(2015)(quoting O'Neill
V. City ofShoreline, 170 Wash. 2d 138, 146-47, 240 P.3d 1149 (2010)). "This broad
construction is deliberate and meant to give the public access to information about
every aspect of state and local government." Id. at 874. Thus,"[i]fthese definitions
are satisfied, then the act applies absent a specific exemption." Nast, 107 Wash. 2d at
311 (Durham, J., dissenting); see also Resident Action Council v. Seattle Hous.
Auth, 111 Wash. 2d 417, 438, 327 P.3d 600 (2013) (figure illustrating whether
disclosure under the PRA is required).
As discussed above, the term "agency" remains unchanged since 1972 and
"includes all state agencies and all local agencies." RCW 42.56.010(1)(emphasis
-14-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
added). And '"[sjtate agency' includes every state office, department, division,
bureau, board, commission, or other state agency." Id.
I agree with the lead opinion's analysis about individual legislators' offices.
The 2007 legislative amendments did not work to break the definitional chain, and
individual legislators' offices are "agencies" subject to the PRA's broad public
records disclosure mandate. Lead opinion at 13. But I disagree that the legislature,
including its bicameral bodies and other offices, are not "agencies" subject to the
PRA.
The lead opinion places heavy emphasis on the fact that the legislature and its
bicameral bodies are not specifically listed in the PRA's broad definition of "state
agency." Id. at 14. The lead opinion argues 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 [campaign disclosure and contribution law]." Id. at 15. Yet
the lead opinion loses sight of the fact that this was an initiative originally drafted
by the people. And we must interpret the PRA as the'"average informed lay voter'"
would. Am. Legion, 164 Wash. 2d at 585 (quoting Brown, 139 Wash. 2d at 28). The
failure ofthe electorate to name the legislature explicitly in its broad, nonexhaustive
list of governmental entities is not dispositive. The failure of the legislature to
subsequently exempt itself from the broad, nonexhaustive list is more telling. In
-15-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
point of fact, the legislature has tried to exempt itself, but failed.^ The two
definitions at issue,"agency" and "state agency," remain almost entirely unchanged
except for the deletion of the term "public official." Thus, in keeping with the
original intent of the electorate, I would hold that the legislature and its bicameral
bodies and other offices are "agencies" subject to the PRA.
Our case law supports that the definition of"state agency" is not cabined by
the classes of entities listed in its definition. For example, we have held a
nongovernmental, private entity may be subject to the PRA if it is found to be the
"functional equivalent" of a public "agency." Fortgang, 187 Wash. 2d at 512-13
(adopting the four-factor Telforct balancing test).^
^ Most recently, the legislature passed Engrossed Senate Bill 6617,65th Leg., Reg.
Sess. (Wash. 2018), which explicitly exempted itself from the PRA. At the subsequent
urging of many legislators, the govemor vetoed the bill, and the veto was not overcome.
While I am aware that "legislative intent cannot be gleaned from the failure to enact a
measure," e.g., State v. Conte, 159 Wash. 2d 797, 813, 154 P.3d 194(2007), this most recent
experience serves only to highlight that the legislature has not explicitly exempted itself
from the PRA. See RCW 42.56.070,.230-.470,.600-.610.
Telfordv. Thurston County Bd. ofComm'rs,95 Wn. App. 149, 161-63, 974 P.2d
886(1999).
^ "The Telford test—^which derives from ease law interpreting the federal Freedom
ofInformation Act(FOIA)—furthers the PRA's purposes by preventing governments from
evading public oversight through creative contracting." Fortgang, 187 Wash. 2d at 513
(footnote omitted) (citing 5 U.S.C. § 552). The PRA "closely parallels" FOIA, and
sometimes judicial interpretations of FOIA help us construe the PRA. Hearst, 90 Wash. 2d
at 128. But Congress is not an "agency" under FOIA and is specifically exempted. 5
U.S.C. §§ 551(1)(A), 552(f). Congressional records thus are not subject to FOIA's
disclosure requirements. See id. Our legislature, conversely, has not explicitly exempted
itself from the PRA like its federal counterpart.
-16-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
"Under the Telford test, the factors relevant to deciding when a private entity
is treated as the functional equivalent of an agency are (1) whether the entity
performs a government function,(2) the extent to which the government funds the
entity's activities,(3)the extent ofgovernment involvement in the entity's activities,
and(4) whether the entity was created by the government." M at 517-18.
Generally, a nongovernmental, private entity would not fit in one ofthe listed
categories of "state agency," such as "state office, department, division, bureau,
board, [or] commission." RCW 42.56.010(1). But such entities could fit in the
"other state agency" category. See, e.g., Clarke v. Tri-Cities Animal Care & Control
Shelter, 144 Wash. App. 185, 191, 195, 181 P.3d881 (2008)(concluding that the Tri-
Cities Animal Care and Control Shelter—^a privately run corporation that contracted
with the regional animal control authority to provide animal control services—^was
the functional equivalent of a public "agency" subject to the PDA). Still, it would
be absurd to conclude that a nongovernmental, private entity can be subject to the
PRA but the legislature cannot simply because it is not listed in the open-ended
definition of"state agency." Our constitution vests the legislature, consisting ofthe
house and the senate, with the authority to make laws and fund the government; to
hold the legislature is not, at least, the functional equivalent of a "state agency"
-17-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
would be absurd. See Resident Action Council, 111 Wash. 2d at 431 (noting we
interpret the PRA to avoid absurd results).
The lead opinion concludes that by adding one sentence to the definition of
public records, which specifies only that the secretary and the chief clerk are
responsible for certain classes of legislative records, the legislature dramatically
narrowed the scope of general public records requirements and relieved itself of
further obligations under the PRA. Lead opinion at 16. I disagree.
To begin with, the secretary and the chief clerk do not possess all of the
legislature's public records. Instead, they possess only the legislative records
members ofthe legislature's various committees and subcommittees provide:
The legislative eommittee chair, subcommittee chair, committee member, or
employed personnel of the state legislature having possession of legislative
records that are not required for the regular performance of official duties
shall, within ten days after the adjoumment sine die of a regular or special
session, deliver all such legislative records to the clerk of the house or the
secretary of the senate.
RCW 40.14.130. In addition, the secretary and the chief clerk depend on the
legislature to "deliver" those legislative records to their respective offices:
The chair, member, or employee of a legislative interim eommittee
responsible for maintaining the legislative reeords of that committee shall,
on a scheduled basis agreed upon by the ehair, member, or employee ofthe
legislative interim eommittee, deliver to the clerk or secretary all legislative
records in his or her possession.
-18-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
Id. The statute governing the preservation and destruction of public records defines
legislative records:
"[L]egislative records" shall be defined as correspondence, amendments,
reports, and minutes of meetings made by or submitted to legislative
committees or subcommittees and transcripts or other records of hearings or
supplementary written testimony or data thereof filed with committees or
subcommittees in connection with the exercise oflegislative or investigatory
functions, but does not include the records of an official act ofthe legislature
kept by the secretary of state, bills and their copies, published materials,
digests, or multi-copied matter which are routinely retained and otherwise
available at the state library or in a public repository, or reports or
correspondence made or received by or in any way under the personal
control ofthe individual members ofthe legislature.
RCW 40.14.100 (emphasis added). Thus, the secretary and the chief clerk are
currently responsible for compiling and preserving a much narrower subset ofpublic
records—legislative records—^than the PRA's broad disclosure requirements
encompass. Presumably, the legislature could possess public records related to
matters ofsubstantial public interest, but those records will never be delivered to the
secretary and the chief clerk. If we accept the lead opinion's conclusion that the
legislature is not subject to the PRA and, instead, the PRA's requirements pertain
only to the secretary and the chief clerk, then we must accept that the people may
not obtain a host of public records not otherwise specified in the limited class of
legislative records for which the secretary and the chief clerk are responsible. Such
-19-
Associated Press et al. v. Wash. State Legislature et at., 95441-1
(Stephens, J., concurring in part/dissenting in part)
a reading would defeat the clear purpose and intent of the people in enacting the
PRA.
The PRA specifically addresses the secretary and the chief clerk in its
definition of"public records" and states that, when it comes to these specific state
offices, "public records" are "legislative records." RCW 42.56.010(3). However,
there are other legislatively created records, like the ones requested by the
Associated Press in response to incidents of alleged sexual harassment and
misconduct, that fall outside the definition of"legislative records" but must still be
recognized as "public records." Cf. RCW 40.14.100; RCW 42.56.010(3). Under
the lead opinion's holding that the secretary and the chief clerk are the only
"agencies" of the legislature subject to the PRA, the documents requested by the
Associated Press concerning allegations of sexual harassment and misconduct will
be consumed by the very "black hole" the PRA meant to avoid. Cf. Fortgang, 187
Wash. 2d at 520 (observing that the Telford test was designed to prevent the
government from contracting with a private entity to evade PRA accountability).
The lead opinion says "the specter of a 'black hole' of legislative public records is
overblown," lead opinion at 17, yet it looms large.
The lead opinion also argues "the fact that the public cannot obtain all possible
records is not unique to legislative entities but is, instead, a reality inherent to the
-20-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
PRA," and cites several categories ofrecords that are exempt from production under
the PRA. Id. at 17-18. But the legislature has not exempted itself from the PRA.^
All it has done is assign the secretary and the chief clerk duties related to a narrower
subset ofpublic records: legislative records. There is nothing in the PRA supporting
the notion that the legislature intended to exempt itself. Q/] 5 U.S.C. § 551(1)(A)
(Congress explicitly exempting itself from FOIA's definition of"agency"). Absent
^ There is no exemption that specifically applies to public records in the possession
of the legislature or its bicameral bodies or other offices. "The PRA contains numerous
exemptions that protect certain information or records from disclosure, and the PRA also
incorporates any 'other statute' that prohibits disclosure of information or records."
Resident Action Council, 111 Wash. 2d at 432. "The PRA's exemptions are provided solely
to protect relevant privacy rights or vital govemmental interests that sometimes outweigh
the PRA's broad policy in favor of disclosing public records." Id. See generally RCW
42.56.230(personal information exemptions),.235 (religious affiliation exemptions),.240
(investigative, law enforcement, and crime victim information exemptions), .250
(employment and licensing information exemptions), .270 (financial, commercial, and
proprietary information exemptions), .280 (preliminary drafts, notes, recommendations,
and intra-agency memorandum exemptions), .290 (agency party to controversy
exemptions),.300 (areheological site exemptions),.310 (library records exemptions),.320
(education information exemptions),.330 (public utilities and transportation exemptions),
.335 (public utility districts and municipality owned electrical utilities exemptions), .350
(health professional exemptions),.355 (interstate medical licensure compact exemptions),
.360 (health care exemptions), .370 (client records of domestic violence programs, or
community sexual assault programs or services for underserved populations exemptions),
.380 (agricultural and livestock exemptions), .390 (emergency or transitional housing
exemptions), .403 (property and casualty insurance statement of actuarial opinion
exemptions), .410 (employment security department records exemptions), .420 (security
exemptions),.430 (fish and wildlife exemptions),.450(check cashers and sellers licensing
applications exemptions), .460 (fireworks exemptions), .470 (correctional workers
exemptions), .600 (privileged mediation communications exemptions), .610 (certain
information from dairies and feedlots limited).
-21-
Associated Press et al. v. Wash. State Legislature et ah, 95441-1
(Stephens, J., concurring in part/dissenting in part)
a specific exemption, the PRA applies if the definitions of "agency" and "public
record" are met. Nast, 107 Wash. 2d at 311 (Durham, J., dissenting).
The lead opinion misinterprets the statute delegating responsibility to the
secretary and the chief clerk in administering the preservation of certain classes of
legislative records. The secretary and the chief clerk's statutory responsibilities
related to legislative records do not affect the legislature's other responsibilities
under the PRA. And the statutory scheme leaves the secretary and the chief clerk
powerless to address the people's mandate for open government on issues outside
their archival duties specifically related to the legislative process—for example,
potential public records related to reported incidents of alleged sexual harassment
and misconduct. I would hold the secretary and the chief clerk's responsibilities
under the PRA are currently limited to the administration oflegislative records, and
the legislature, as an "agency," is still obliged to provide all other documents that
meet the definition of"public records" under the PRA.^
^ That said, the legislature may delegate its record keeping duties to the secretary
and the chief clerk or some other agency:"A state or local agency's public records officer
may appoint an employee or official of another agency as its public records officer." RCW
42.56.580(1).
-22-
Associated Press et al. v. Wash. State Legislature et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
CONCLUSION
'"A popular Government, without popular information, or the means of
acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.'"
Progressive Animal Welfare Sac'y v. Univ. of Wash, 125 Wn.2d 243,251, 884 P.2d
592 (1994)(quoting Letter to W.T. Barry (Aug. 4, 1822), in 9 The Writings of
James Madison: 1819-1836, at 103 (Gaillard Hunt ed., 1910)). Because I believe
the legislature is a state agency subject to the PRA, and the statute delegating
responsibility to the secretary and the chief clerk in administering the preservation
of certain classes oflegislative records is narrow, I carmot accept the lead opinion's
conclusion that the legislature, including its bicameral bodies and other offices, are
not subject to the broad mandate for open government. Instead, I would hold that
the legislature as an institution, just like individual legislative offices, is subject to
the PRA and must comply with its provisions requiring disclosure of nonexempt
public records.
-23-
Associated Press, etal. v. Wash. State Legislature, et al, 95441-1
(Stephens, J., concurring in part/dissenting in part)
-24-
Associated Press et al. v. Wash. State Legislature et al., No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
No. 95441-1
GORDON McCLOUD,J.(concurring in part/dissenting in part)—Did the
legislature subject itself to the broad disclosure requirements that the Public
Records Act(PRA), ch. 42.56 ROW,imposes on "agencies," or did the legislature
narrow those disclosure requirements for itself? The clear language of the law that
the people passed, but that the legislature later amended, shows that the legislature
chose narrower disclosure requirements for itself than for PRA-defmed "agencies."
The lead opinion agrees that the legislature chose narrow disclosure requirements
for itself as a body but holds that it chose broader disclosure requirements for its
individual members. I therefore respectfully concur in part and dissent in part.
1. The Text ofthe Applicable Statutory Definition Makes Clear That an
Individual Legislator Is Not an "Agency"
The PRA requires every "agency" to "make available for public inspection
and copying all public records." RCW 42.56.070(1). I agree with the lead opinion
that the legislature is not such an "agency." It is the legislative branch of
Associated Press et al. v. Wash. State Legislature et al. No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
government, and it is subject to the more limited disclosure requirements that the
PRA places on that branch.
But I disagree with the lead opinion's conclusion that individual legislators
constitute "agencies" that are subject to the broader disclosure requirements of
other parts ofthe PRA. The lead opinion's conclusion on that point is based on a
definition of"agency" in a separate statute in a different chapter ofthe code. As
discussed in Part 2, below, that definition didn't get into that separate statute and
separate chapter by accident; the legislature intentionally severed that definition
from the PRA,then voted down an amendment that would have maintained a
cross-reference to the once-conjoined and now-severed statute that the lead opinion
claims is still context for the PRA.
I would start with the plain language of the PRA instead. Under the PRA
definition,'"[ajgeney' includes all state agencies" and "'[sjtate agency' includes
every state office, department, division, bureau, board, commission, or other state
agency."^ RCW 42,56.010(1)(emphasis added). The lead opinion interprets "state
office," the broadest of these terms, to include individual legislators. In fact, the
'"Agency also includes "all local agencies." RCW 42.56.010(1). There is no
contention in this case that individual legislators are "local agencies."
Associated Press et al. v. Wash. State Legislature et al. No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
lead opinion assumes that individual legislators are "government entit[ies]" that
could be subject to the PRA because they have offices. Lead opinion at 10. But an
individual legislator does not become a "state office" simply because the legislator
has an office as a work space or because the legislator has a legislative aide. That
logic would make countless individual state employees their own "agencies"
separate and apart from the state agencies that employ them.
Instead, to determine the meaning of"state office"—and whether it includes
an individual legislator—we should stick to the statute's text and consider the term
in relation to its neighboring terms: "department, division, bureau, board,
commission," and "other state agency."^ RCW 42.56.010(1). These terms all refer
to entities that have the power to act on behalf of the state—or a local government
entity—by setting policy or transacting business. This context shows that an
"agency" is a public entity (or a private entity acting in a public role, see Fortgang
V. Woodland Park Zoo, 187 Wash. 2d 509, 512-13, 387 P.3d 690(2017))that has the
power to transact business or take action on behalf of the government. An
^ See State v. Gonzales Flares, 164 Wash. 2d 1, 12, 186 P.3d 1038 (2008)("[A]
single word in a statute should not be read in isolation. Rather, the meaning of a word
may be indicated or controlled by reference to associated words."(citing State v.
Roggenkamp, 153 Wash. 2d 614, 623, 106 P.3d 196 (2005); State v. Van Woerden, 93 Wn.
App. 110, 117, 967 P.2d 14 (1998))).
Associated Press et al. v. Wash. State Legislature et al.. No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
individual legislator has no such power.^ Thus, under the PRA's definition of
"agency," an individual legislator is not a "state office" and, by extension, not an
"agency."
This reading is bolstered by the fact that the PRA clearly differentiates
between "agencies," on the one hand, and the legislature, or legislators, on the
other, by imposing specific, more limited disclosure obligations on the legislature's
records custodians, the secretary of the senate and the chief clerk ofthe house of
representatives.'^
^ "The legislative authority of the state of Washington shall be vested in the
legislature, consisting of a senate and house of representatives." WASH. CONST, art. II,
§ 1 (emphasis added). To the extent that individual or smaller groups of legislators are
permitted to act on behalf of either chamber, it is only because that chamber, as a body,
has delegated its legislative authority to the individual or smaller group. See PERMANENT
Rules of the Senate, r.5, 66th Leg.(Wash. 2019-20),
http://leg.wa.gOv/senate/Administration/Pages/senate_rules.aspx#rule5 (S.R. 8601)
(delegating the senate's legislative authority); PERMANENT RULES OF THE HOUSE OF
Representatives,r.6, 66th Leg.(Wash. 2019-20),
http://lawfiles.ext.leg.wa.gOv/biennium/2019-20/Pdf/Bills/House%20Resolutions/4607-
Permanent%20rules%20of%20House.pdf(H.R. 4607)(delegating the house's legislative
authority). Indeed, individual legislators do not employ staff—their administrative
officers employ the staff under an express delegation of authority by each chamber. See
S.R. 8601, r.3; H.R. 4607, r.5 (delegating authority over employees of each chamber to
the secretary of the senate and the chief clerk of the house of representatives,
respectively).
" Specifically, the PRA repeatedly differentiates between the duties of the
secretary and the chief clerk, on the one hand, and the duties of"agencies," on the other.
See, e.g., RCW 42.56.010,.090,.100,.520,.550, .560. The PRA's imposition of unique,
more limited duties on the secretary and the chief clerk shows that the legislative bodies,
although not agencies, are subject to the PRA in some fashion. But it is a limited fashion.
4
Associated Press et al. v. Wash. State Legislature et al. No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
2. The Lead Opinion's Conclusion That Legislators Are "Agencies"Is
Based on a Different Unconnected Statute, Whose Definitions Are Not
Part ofthe PRA—In Fact, They Were Explicitly Deletedfrom the PRA
The lead opinion concludes that legislators are "agencies," largely by relying
on a historically "closely related" statute that the legislature has since taken steps
to divorce from the PRA. There is no rule of statutory interpretation that supports
this result.
Specifically, rather than look to other provisions of the PRA for context, the
lead opinion relies on the definitions section of the Fair Campaign Practices Act
(FCPA), ch. 42.17A RCW.^ But nothing in the text of the PRA suggests that its
provisions should be read in light of the FCPA. In fact, the legislature suggested
just the opposite when it found that the PRA and FCPA cover "discrete subjects"
and created the PRA as its own freestanding enactment. RCW 42.56.001.
To be sure, the lead opinion is correct that the FCPA and PRA were joined
at the hip for 35 years. Lead opinion at 7. But not anymore. This means there are
The lead opinion is therefore correct that "exempting [the senate and the house of
representatives] from any public records disclosure duties whatsoever would be [an]
absurd" way to read the PRA,lead opinion at 16, and with its further conclusion that
those disclosure duties are limited.
^ The lead opinion refers to this statute as the "campaign disclosure and
contribution law." Lead opinion at 7.
Associated Press et al. v. Wash. State Legislature et al., No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
two problems with the lead opinion's decision to rely on that history to justify
using the FCPA to interpret the PRA now.
The first problem is that the lead opinion is resorting to legislative history to
augment the plain language of the PRA, when the PRA is not ambiguous about its
own definition of"agency." That is not how we interpret statutes—if the statute's
text is not ambiguous, we do not resort to legislative history. Spokane County v.
Dep'tofFish & Wildlife, 192 Wn.2d453,458, 430 P.3d 655 (2018).
The second problem is that, although the lead opinion accurately
summarizes the intertwined history of the PRA and the FCPA and their previously
shared definition of"state office," it draws the wrong conclusion from that history;
actually, the legislature's decision to separate those statutes must be interpreted as
a legislative intention to separate those statutes.
Here's how it happened. In 2005, the legislature separated the FCPA and
the PRA into their own chapters. LAWS OF 2005, ch. 274, §§ 101-103. The
definitions section of the newly minted PRA still cross-referenced the FCPA's
definitions, including the FCPA's definitions of"agency" and "state office." If we
were interpreting the 2005 PRA today, with its cross-reference to FCPA
definitions, I would join the lead opinion.
Associated Press et al. v. Wash. State Legislature et al. No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
But in 2007, the legislature supplied the PRA with its own definitions
section and removed the cross-reference to the FCPA entirely. Laws of 2007, ch.
197, § 1. Those 2007 amendments had an effect. They imported the FCPA's
definition of"agency" into the PRA word for word. But they left behind other
definitions, including the definition of"state office." We have to presume that the
legislature intended to change the law by passing this amendment. Jane Roe v.
TeleTech Customer Care Mgmt. (Colo.) LLC, 171 Wash. 2d 736, 751, 257 P.3d 586
(2011)("A new legislative enactment is presumed to be an amendment that
changes a law rather than a clarification of the existing law.").
The lead opinion adopts the opposite presumption. It presumes that the
legislature intended for its enactment to have no practical effect and for the PRA to
continue looking to the FCPA to define its terms.^ But that is not the interpretive
principle the court uses. Id.
And the legislature knows that. Since the time that it severed the PRA from
the FCPA, it has added new, express cross-references between them. For example.
® The lead opinion concludes that "[wjithout 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." Lead opinion at 11. The lead
opinion does not suggest what additional notice would be required beyond the ordinary,
publicly accessible legislative process. The legislature's amendment of a statute changes
the statute—^whether it makes headlines or not.
7
Associated Press et al. v. Wash. State Legislature et al., No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
in 2010, the FCPA defined "public record" to have "the definition in RCW
42.56.010." RCW42.17A.005(43);Lawsof2010, ch. 204, § 101. So the
legislature obviously knows how to cross-reference when it means to. But it did
not enact such a similar cross-reference from the PRA to the FCPA for "state
office." The lead opinion's decision to read such a cross-reference into the PRA
anyway flouts basic rules of statutory interpretation.
3. The Proper Context—Other Portions ofthe PRA—Supports the
Conclusion That an Individual Legislator Does Not Constitute an
"Agency"
The FCPA definition of"state office" is not context for the PRA. Instead,
the context for a portion of the PRA is the rest of the PRA.
That context shows that the PRA distinguishes an "official"—like a
legislator—from an "agency." For example, RCW 42.56.060 protects every
"public agency, public official, public employee,[and] custodian" from liability if
that individual "acted in good faith in attempting to comply with the provisions of
the PRA. Legislators are certainly "public officials]," one of the categories listed,
which suggests that they are not also "agencies," a separate category listed. See
State V. Roggenkamp, 153 Wash. 2d 614, 625, 106 P.3d 196(2005)("Another
fundamental rule of statutory construction is that the legislature is deemed to
intend a different meaning when it uses different terms." (citing State v. Beaver,
8
Associated Press et al. v. Wash. State Legislature et al. No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
148 Wash. 2d 338, 343,60 P.3d 586 (2002); Simpson Inv. Co. v. Dep 't ofRevenue,
141 Wash. 2d 139, 160, 3 P.3d 741 (2000)).
In addition, the PRA limits the legislature's disclosure obligations by
repeatedly distinguishing legislative records custodians from "agencies." For
example, RCW 42.56.100 requires "agencies" to "adopt and enforce reasonable
rules and regulations . . . consonant with the intent of[the PRA]to provide full
access to public records, to protect public records from damage or disorganization,
and to prevent excessive interference with other essential functions of the agency."
The legislature has a lighter burden, however. The legislative records custodians
must "adopt reasonable procedures" to effectuate the same aims of access,
preservation, and efficiency, but they may do so "allowing for the time, resource,
and personnel constraints associated with legislative sessions." Id. If individual
legislators were "agencies," this accommodation would impose full PRA
obligations on individual legislators, while simultaneously relaxing obligations on
those same legislators' appointed records custodians, despite the expressed intent
to accommodate those legislators' "time, resource[s], and personnel constraints."
Id. Such a contradictory interpretation would be absurd, and hence, it is
disfavored. See Tingeyv. Haisch, 159 Wash. 2d 652, 664, 152 P.3d 1020(2007)("A
reading that produces absurd results must be avoided.").
Associated Press et al. v. Wash. State Legislature et at., No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
Further, the PRA as a whole limits outside scrutiny of the legislative branch.
For example, the PRA permits records requesters to haul the secretary and the
chief clerk into court under some PRA provisions, but not others. RCW 42.56.550
permits records requesters to sue an "agency" when it(1)"denie[s] an opportunity
to inspect or copy a public record" or(2)"has not made a reasonable estimate of
the time that the agency requires to respond to a public record request or a
reasonable estimate of the charges to produce copies of public records." And
RCW 42.56.560 applies the first of these claims to the secretary and the chief
clerk. But not the second one. It lacks any provision for suits relating to
unreasonable estimates. Accordingly, under the usual rules of statutory
interpretation, the secretary and the chief clerk carmot be called into court, as
"agencies" can be, for providing unreasonable estimates.^ This intentional
differentiation would be undermined by subjecting individual legislators, as
"agencies," to the entirety of RCW 42.56.550.
Finally, the PRA narrows the definition of"public record" for the
legislature. For "agencies," a "public record" is ''any writing containing
^ See State v. Delgado, 148 Wash. 2d 723, 729, 63 P.3d 792(2003)("'Under
expressio unius est exclusio alterius, a canon of statutory construction, to express one
thing in a statute implies the exclusion of the other.'"(quoting In re Det. of Williams, 147
Wash. 2d 476, 491, 55 P.3d 597 (2002))).
10
Associated Press et al. v. Wash. State Legislature et al., No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
information relating to the conduct of government or the performance of any
governmental or proprietary function prepared, owned, used, or retained by any
state or local agency regardless of physical form or characteristics."
RCW 42.56.010(3)(emphasis added). But for the secretary and the chief clerk, a
"public record" is limited to certain administrative records, official reports, and the
records identified under cross-referenced RCW 40.14.100. Id. RCW 40.14.100
basically covers the records ofthe legislature's committees and subcommittees. It
explicitly excludes, however,"reports or correspondence made or received by or in
any way under the personal control of the individual members of the legislature."
RCW 40.14.100. Neighboring statute RCW 40.14.110 reinforces that exclusion by
giving individual legislators the option to donate their personal papers or,
conversely, keep them to themselves. Turning individual legislators into
"agencies" would frustrate this narrow definition that applies to the legislature,
making the entirety of legislators' writings "public records" subject to the PRA.
Conclusion
Text is "[t]he surest indication of legislative intent." State v. Ervin, 169
Wash. 2d 815, 820, 239 P.3d 354(2010). And when we say "text," we mean the text
of the statutory provision at issue in context of the statute in which it resides. See
Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 10, 43 P.3d 4(2002)
11
Associated Press et al. v. Wash. State Legislature et al, No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
(reading a statute '"in the context of the entire act' in which it appeared."(quoting
In re Estate ofLyons, 83 Wash. 2d 105, 108, 515 P.2d 1293 (1973))),
The lead opinion departs from these rules and reaches its conclusion by
relying on a definition of"state office" from a separate statute, whose definitions
were intentionally excised from the PRA, and whose cross-reference was then also
deleted. We have never before approved of such an approach to statutory
interpretation. I would interpret the PRA's text and context in the usual manner,
recognize that legislators are not "agencies," and, accordingly, conclude that they
are subject to the PRA to the same extent as the legislature of which they form a
part. The lead opinion and I agree that the text of the PRA plainly limits the ways
in which the legislature is subject to the PRA.
I respectfully concur in part and dissent in part.
12
Associated Press et al. v. Wash. State Legislature et al. No. 95441-1
(Gordon McCloud, J., concurring in part/dissenting in part)
13