Arthur West v. Tesc Board Of Trustees , 414 P.3d 614 ( 2018 )


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  •                                                                                              Filed
    Washington State
    Court of Appeals
    Division Two
    February 27, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    ARTHUR WEST,                                                    No. 49120-6-II
    Appellant,
    v.
    TESC BOARD OF TRUSTEES; FRED
    GOLDBERG; DAVID NICANDRI; ANNE
    PROFFITT;  GRETCHEN   SORENSEN;                          UNPUBLISHED OPINION
    JAMES WIGFALL; NICHOLAS WOOTEN;
    STATE OF WASHINGTON.
    Respondents.
    MELNICK, J. — Arthur West sued The Evergreen State College (Evergreen) after
    Evergreen, relying on the Family Educational Rights and Privacy Act of 1974 (FERPA), 1 redacted
    or withheld certain records when responding to West’s public records request. FERPA conditions
    receipt of federal higher education funding on compliance with its student information
    nondisclosure requirements. West argued that because FERPA imposes funding constraints on
    Evergreen rather than directly regulating its disclosure activities, the law cannot fall within the
    “other statute” exemption of the Public Records Act (PRA).2 The Superior Court found in favor
    of Evergreen. We affirm.
    1
    20 U.S.C. § 1232g.
    2
    Ch. 42.56 RCW.
    49120-6-II
    FACTS
    I.     BACKGROUND
    A.      Evergreen
    Evergreen, a four-year institution of higher education in Washington, receives federal
    funding.3 Federal education funding is often conditional on the institution’s compliance with
    federal laws, including FERPA. 20 U.S.C. § 1232g; 34 C.F.R. § 99. FERPA restricts school
    disclosure of students’ education records and personally identifiable information. See 20 U.S.C.
    § 1232g.
    On October 21, 2014, West submitted a records request to Evergreen under the PRA. West
    requested:
    1. All records concerning the application and enforcement of
    [Evergreen’s] Criminal Trespass Policy, January 1, 2014 to
    present.
    2. Any grant voucher or certification by the college that it will
    comply with Civil Rights laws as a condition of receiving any
    federal or state grants or funding, 2010 to present.
    Clerk’s Papers (CP) at 512. After communicating with Evergreen, West clarified his request as
    follows:
    1. Other types of records, as well as the policy.
    2. Please produce any records concerning compliance with any
    conditions as a condition of applying for or receiving federal
    funding.
    CP at 516. Due to the breadth of West’s request, Evergreen determined that it would share the
    relevant records with West in installments. With the exception of August 2015, Evergreen
    3
    In the 2014-15 school year, Evergreen distributed 41.6 million dollars of federal financial aid to
    students. Evergreen received an additional 22.3 million dollars in grants and contracts in the 2015
    fiscal year.
    2
    49120-6-II
    delivered one installment each month from November 2014 to October 2015. In total, Evergreen
    produced 1,219 pages in response to West’s request.
    B.     Evergreen Redacts Records
    As Evergreen’s public records officer processed West’s request, she identified FERPA as
    a possible PRA exemption. 20 U.S.C. § 1232g. Evergreen redacted documents believed to contain
    either student education records or personally identifiable information within five of the
    installments.4 The relevant records were primarily generated by Evergreen’s Student Affairs
    Office and its Campus Police Services. The responsive documents in some installments contained
    records, e-mails, and e-mail attachments. Evergreen redacted personally identifiable information,
    including names, student numbers, and disciplinary records. With respect to the Campus Police
    Services’ installment, Evergreen redacted the 16 pages that contained personally identifiable
    information from student records. The redactions included student identification (ID) numbers,
    student ID photos, and disciplinary e-mails to students.
    Evergreen also redacted records it believed to be subject to the attorney-client privilege
    stated in RCW 5.60.060(2)(a). According to Evergreen’s redaction log, the redacted document
    was an e-mail requesting advice from Assistant Attorney General Colleen Warren. The withheld
    documents were attachments to that e-mail relating to the same subject.
    II.       PROCEDURAL HISTORY
    On May 12, 2015, West filed a complaint against Evergreen. West accused Evergreen of
    putting into practice an “unwritten and illegal Criminal Trespass Policy.” CP at 4. More to the
    point, West argued that Evergreen’s failure to disclose “records of completed criminal
    investigations related to” the alleged criminal trespass policy violated the PRA, and that Evergreen
    4
    Other installments did not contain FERPA redactions and are not at issue in this case.
    3
    49120-6-II
    had improperly relied on FERPA to redact the files. CP at 4. Evergreen argued that its FERPA
    redactions were proper under the “other statute” exception to the PRA, and moved for summary
    judgment.
    The trial court granted summary judgment to Evergreen on the FERPA issue. The trial
    court ruled that FERPA fell within the “other statute” exception of the PRA. However, the court
    needed further information to determine whether FERPA was properly applied in this case. The
    trial court directed West to identify “the specific documents and redactions that he believe[d] to
    improperly apply to FERPA,” instructed Evergreen to explain its redactions, and scheduled a status
    conference for the following month. CP at 56.
    West identified the challenged redactions. Evergreen asserted it properly exempted these
    redactions as protected student information under FERPA. West moved for summary judgment,
    and Evergreen filed a cross motion for dismissal.
    After a hearing, the trial court issued a second order. The trial court ruled that Evergreen
    had “properly discharged its obligations” under the PRA. CP at 110. Accordingly, the trial court
    denied West’s summary judgment motion and dismissed the case. West appeals.
    ANALYSIS
    I.     APPEAL OF PARTIAL SUMMARY JUDGMENT AND DISMISSAL
    West argues that FERPA does not qualify as an “other statute” authorizing the redaction of
    otherwise public records under the PRA. West also argues that Evergreen improperly relied on
    the attorney-client privilege to withhold requested records. We disagree.
    A.      Standard of Review
    We review PRA cases de novo. Nissen v. Pierce County, 
    183 Wash. 2d 863
    , 872, 
    357 P.3d 45
    (2015); RCW 42.56.550(3). With the appellate court standing in the shoes of the trial court,
    4
    49120-6-II
    the party seeking to prevent disclosure bears the burden of establishing that an exemption applies.
    Ameriquest Mortg. Co. v. Office of Att’y Gen., 
    177 Wash. 2d 467
    , 486, 
    300 P.3d 799
    (2013)
    (Ameriquest II); RCW 42.56.550(1).
    A superior court’s decision on summary judgment is also reviewed de novo. Didlake v.
    State, 
    186 Wash. App. 417
    , 422, 
    345 P.3d 43
    (2015). Summary judgment is appropriate if there are
    no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
    CR 56(c).
    B.      The PRA Requires Disclosure of Non-Exempt Public Records
    The purpose of the PRA is to increase “governmental transparency and accountability by
    making public records accessible to Washington’s citizens.” John Doe A v. Wash. State Patrol,
    
    185 Wash. 2d 363
    , 371, 
    374 P.3d 63
    (2016). Accordingly, the PRA mandates the broad disclosure
    of public records. Resident Action Council v. Seattle Hous. Auth., 
    177 Wash. 2d 417
    , 431, 
    327 P.3d 600
    (2013). The statute’s provisions are to be “liberally construed and its exemptions narrowly
    construed.” RCW 42.56.030. Unless an exemption applies, an agency must disclose public
    records upon request. RCW 42.56.070(1).
    There are two broad categories of PRA exemptions, specific exemptions within the PRA
    itself, and exemptions based on other laws. RCW 42.56.210-.470;5 RCW 42.56.070(1). RCW
    42.56.070 is the source of the “other statute” exemption at issue in this case. Agencies “shall make
    available for public inspection and copying all public records, unless the record falls within the
    specific exemptions of . . . this chapter, or other statute which exempts or prohibits disclosure of
    specific information or records.” RCW 42.56.070(1).
    5
    The PRA, similar to FERPA, specifically exempts “[p]ersonal information” and “[e]ducational
    information.” RCW 42.56.230; RCW 42.56.320.
    5
    49120-6-II
    An “other statute” does not need to “expressly address the PRA, but it must expressly
    prohibit or exempt the release of records.” John Doe 
    A, 185 Wash. 2d at 372
    . This provision does
    not permit courts to imply exemptions. PAWS v. Univ. of Wash., 
    125 Wash. 2d 243
    , 259-60, 
    884 P.2d 592
    (1994) (PAWS II). The “[l]egislature did not intend to entrust to . . . judges the [authority
    to imply] extremely broad and protean exemptions.” PAWS 
    II, 125 Wash. 2d at 260
    .
    By contrast, if a law contains a specific exemption that “expressly prohibit[s]” or exempts
    the disclosure of specific information or records, it may qualify as an “other statute” exemption
    under the PRA. John Doe 
    A, 185 Wash. 2d at 372
    ; PAWS 
    II, 125 Wash. 2d at 262
    . Courts finding an
    “other statute” exemption have also identified a “legislative intent to protect a particular interest
    or value.” John Doe 
    A, 185 Wash. 2d at 378
    .
    C.     FERPA Qualifies as an “Other Statute” Because it Exempts Student
    Education Records
    A federal law may be an “other statute” under the PRA. Ameriquest Mort. Co. v. Office of
    Atty. Gen., 
    170 Wash. 2d 418
    , 439-40, 
    241 P.3d 1245
    (2010) (Ameriquest I), held that the Gramm–
    Leach–Bliley Act (GLBA), 15 U.S.C. §§ 6801–6809, was an “other statute” exempting records
    from PRA disclosure. As the Ameriquest I court explained, the “other statute exemption . . . allows
    the federal regulation’s privacy protections to supplement the PRA’s exemptions. We have held
    numerous other state statutes’ disclosure prohibitions are thus incorporated into the PRA [and] see
    no reason why a federal law should be treated differently.”6 Ameriquest 
    I, 170 Wash. 2d at 440
    .
    6
    In context, this quote rejected Ameriquest’s argument that the GLBA preempts Washington’s
    PRA. Ameriquest 
    I, 170 Wash. 2d at 440
    . West also raises preemption in this case, apparently in
    response to his mistaken belief that Evergreen asserts that FERPA preempts the PRA. West is
    incorrect; Evergreen does not argue preemption. Therefore, we do not address West’s preemption
    argument.
    6
    49120-6-II
    Washington courts draw no distinction between state and federal laws in terms of what constitutes
    an “other statute” under the PRA. Ameriquest 
    I, 170 Wash. 2d at 440
    .
    As discussed above, FERPA is an “other statute” if it expressly exempts the relevant
    records from disclosure. John Doe 
    A, 185 Wash. 2d at 372
    . In this case, FERPA qualifies as an
    “other statute” because it exempts student education records like those redacted or withheld by
    Evergreen.
    1.      FERPA Student Privacy Protections
    The purpose of FERPA is “to set out requirements for the protection of privacy of parents
    and students.” 34 C.F.R. § 99.2; 120 Cong. Rec. 39858, 39862 (1974). FERPA prohibits
    educational institutions that receive federal funding from disclosing education records or
    personally identifiable information from those records without first receiving the students’ written
    consent. 20 U.S.C. § 1232g(b), (d); 34 C.F.R. Part 99.
    In furtherance of FERPA’s privacy goals, the statute expressly addresses two categories of
    records relevant to this case: student “education records” and students’ “personally identifiable
    information.” 20 U.S.C. § 1232g(b)(1) states:
    No funds shall be made available under any applicable program to
    any educational agency or institution which has a policy or practice
    of permitting the release of education records (or personally
    identifiable information contained therein other than directory
    information, as defined in paragraph (5) of subsection (a)) of
    students without [ ] written consent.
    The following section, 20 U.S.C. § 1232g(b)(2), further restricts disclosure of “personally
    identifiable information”:
    No funds shall be made available under any applicable program to
    any educational agency or institution which has a policy or practice
    of releasing, or providing access to, any personally identifiable
    information in education records other than directory information,
    7
    49120-6-II
    or as is permitted under paragraph (1) of this subsection [without
    written consent.].
    FERPA explicitly identifies narrow exceptions to these disclosure limitations. 20 U.S.C.
    § 1232g(b)(1)-(2) (permit disclosure of directory information); 34 C.F.R. 99.31(a)(9)(ii) (permits
    disclosure in response to judicial order or lawful subpoena). Even when such exceptions apply,
    protected information may only be disclosed if the recipient will not redisclose the information to
    a third party without prior written consent. 20 U.S.C. § 1232g(b)(4)(B); 34 C.F.R. § 99.33(a)(1).
    2.      What FERPA “Requires”
    West’s primary argument is that FERPA cannot qualify as an “other statute” because it
    fails to “clearly or expressly require anything.” Appellant’s Br. at 14. West argues that FERPA’s
    provisions speak only to the Secretary of Education, and that “spending legislation like FERPA
    fails to confer any . . . rights” that could be enforced against Evergreen. Appellant’s Br. at 18.
    Evergreen argues that it is bound by FERPA due to its reliance on federal funds, and that the
    statute’s explicit nondisclosure language is sufficient to qualify it as an “other statute.” We agree
    with Evergreen.
    West argues that FERPA controls only Department of Education funding allocations, and
    does not require Evergreen to follow its student privacy guidelines. West asserts that the United
    States Supreme Court has already determined that FERPA “fails to confer any enforceable rights.”
    Appellant’s Op. Br. at 18 (citing Gonzaga v. Doe, 
    536 U.S. 273
    , 273, 
    122 S. Ct. 2268
    , 
    153 L. Ed. 2d
    309 (2002)). West’s characterization of Gonzaga is highly misleading. West presents the case
    as establishing that spending legislation can never bind entities like Evergreen; Gonzaga actually
    addresses which statutory violations support a cause of action brought under 42 U.S.C. § 1983.
    
    536 U.S. 273
    . Gonzaga’s holding that FERPA did not confer the type of unambiguously
    8
    49120-6-II
    enforceable right necessary for a student to sue Gonzaga under 42 U.S.C. § 1983, is irrelevant to
    whether FERPA is an “other statute” under the PRA.
    The parties each cite federal or foreign jurisdiction cases to support their arguments on
    whether FERPA imposes binding obligations. Student Bar Ass’n Bd. of Governors v. Byrd, 
    293 N.C. 594
    , 
    239 S.E.2d 145
    (N.C. 1977); WFTV, Inc. v. Sch. Bd. of Seminole, 
    874 So. 2d 48
    (Fla.
    Dist. Ct. App. 2004); DTH Pub’g Cor. v. Univ. of N.C. at Chapel Hill, 
    128 N.C. App. 534
    , 
    496 S.E.2d 8
    (1998); United States v. Miami Univ., 
    294 F.3d 797
    (6th Cir. 2002). While these
    authorities provide useful context, the PRA’s “other statutes” exemption properly focuses on the
    factors outlined in John Doe A and whether the statute “expressly” exempts the records in a manner
    consistent with a clear expression of legislative intent to protect the relevant 
    interest.7 185 Wash. 2d at 372
    .
    We conclude that the “other statute” exemption applies when the plain language of the
    statute explicitly exempts a given category of records or information. In Ameriquest I, the GLBA
    provided that “the receiving nonaffiliated third party may not reuse or redisclose the nonpublic
    personal information to another nonaffiliated third party unless an exception applies or the reuse
    or redisclosure would be lawful if done by the financial 
    institution.” 170 Wash. 2d at 426
    .
    Ameriquest I held the GLBA was an explicit “other statute” and that the third party in question
    could not disclose the records in response to a PRA 
    request. 170 Wash. 2d at 439-40
    .
    Fisher Broadcasting–Seattle TV LLC v. City of Seattle, 
    180 Wash. 2d 515
    , 526, 
    326 P.3d 688
    (2014), held that RCW 9.73.090(1)(c), which directs that “[n]o sound or video recording [made by
    7
    We note that, as a practical matter, Evergreen’s dependence on federal funds makes FERPA
    binding in practice. West does not dispute the College’s assertion that it could not survive without
    federal funding, and provides no support for his assertion that the relevant FERPA provisions
    represent an empty threat. Accordingly, we reject West’s argument that Evergreen could simply
    walk away from federal funding.
    9
    49120-6-II
    camera mounted in a law enforcement vehicle] may be duplicated and made available to the public
    . . . until final disposition [of litigation] which arises from the event or events which were
    recorded,” was an “other statute” that temporarily exempted the recording from production. By
    contrast, courts will not find an “other statute” exemption if the statutory language is not specific.
    For example, in Belo Management Services, Inc. v. Click! Network, 
    184 Wash. App. 649
    , 660-61,
    
    343 P.3d 370
    (2014), the court concluded that 47 C.F.R. § 0.459(a)(1) was not an “other statute”
    because it did not “specifically state” that the records at issue were “confidential and protected
    from disclosure.”
    FERPA contains nondisclosure language. It strips funding from universities that disclose
    their students’ “education records (or personally identifiable information contained therein.).” 20
    U.S.C. § 1232g(b)(1). FERPA further restricts disclosure of “personally identifiable information
    in education records other than directory information.” 20 U.S.C. § 1232g(b)(2). The statute’s
    implementing regulations then define “education records” and “personally identifiable
    information.” 34 C.F.R. § 99.3; 20 U.S.C. 1232g(a)(4). Similar to the GLBA in Ameriquest I,
    FERPA’s implementing regulations further tighten disclosure by expressly prohibiting re-
    disclosure of otherwise disclosable information.         34 C.F.R. § 99.33(a)(1); 20 U.S.C. §
    1232g(b)(4)(B). This type of language is what John Doe A 
    requires. 185 Wash. 2d at 372
    .
    Exempting education records from disclosure is also consistent with a clear “legislative
    intent to protect” student information. Congress passed FERPA “to set out requirements for the
    protection of privacy of parents and students.” 34 C.F.R. § 99.2; 120 Cong. Rec. 39858, 39862.
    FERPA’s implementing regulations, which enumerate the specific and narrow exceptions to its
    nondisclosure requirements, further underscore the statute’s focus on protecting student privacy.
    10
    49120-6-II
    Withholding or redacting student information in this case, including students’ photos and
    disciplinary communications, is consistent with this purpose.
    FERPA exempts certain student education records and personal information from
    disclosure. It satisfies the John Doe A criteria for qualification as an “other statute” under the
    PRA. 
    See 185 Wash. 2d at 373
    . FERPA is therefore an “other statute” under the PRA. Evergreen,
    having already accepted federal funding and assumed the obligation of complying with FERPA,
    is bound by FERPA’s disclosure restrictions.8
    D.     Evergreen Appropriately Redacted Student Education Records Associated with
    Law Enforcement
    Having determined that FERPA is an “other statute” under the PRA, we now consider
    West’s assertion that Evergreen adopted an overbroad definition of “education records,” and thus
    redacted student disciplinary records it should have disclosed. We conclude Evergreen properly
    redacted the information.
    FERPA defines “education records” as “those records, files, documents, and other
    materials which . . . contain information directly related to a student[,] and . . . are maintained by
    an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C.
    § 1232g(a)(4)(A); 34 C.F.R. § 99.3(a). Law enforcement records are records “[c]reated [and
    maintained] by a law enforcement unit . . . for a law enforcement purpose.” 34 C.F.R. § 99.8(b)(1).
    West’s challenge most directly relates to redacted Campus Police Services records. The
    redacted information included student identification numbers, student photos, and student
    8
    West later revisits this issue by asserting that, if FERPA is an “other statute” that binds the
    College, it is unconstitutional under the anti-commandeering doctrine. See generally, e.g., Printz
    v. United States, 
    521 U.S. 898
    , 
    117 S. Ct. 2365
    , 
    138 L. Ed. 2d 914
    (1997). Because West’s
    argument is beyond the scope of appeal, we decline to consider it. RAP 10.3. For the same reason,
    we also decline to address West’s unsupported argument that the trial court’s interpretation of
    FERPA and the PRA violates the privileges and immunities clause of the Washington Constitution.
    11
    49120-6-II
    disciplinary correspondence. Under the plain language of FERPA, these types of records are
    protected from disclosure. 20 U.S.C. § 1232g(b). They are “[e]ducation records” because they
    contain information “[d]irectly related to a student” and are “[m]aintained by an educational
    agency” or agent thereof. These records are also “personally identifiable information” because
    they include or are likely to include “[t]he student’s name . . . [a] personal identifier, such as the .
    . . student number . . . [or] information that, alone or in combination . . . would allow a reasonable
    person in the school community . . . to identify the student with reasonable certainty.” 34 C.F.R.
    § 99.3. Therefore, the records fall within document categories that FERPA exempts from
    disclosure. 20 U.S.C. § 1232g(b)(1)-(2).
    As applicable to the redactions of the Campus Police Services information the records are
    not classified as “law enforcement” records. 34 C.F.R. § 99.8(b)(2)(i). These records are not
    stripped of their protected status solely because they passed through Campus Police Services’
    possession. “Education records, and personally identifiable information contained in education
    records, do not lose their status as education records and remain subject to [FERPA], including the
    disclosure provisions of § 99.30, while in the possession of the law enforcement unit.” 34 C.F.R.
    § 99.8(c)(2). Viewed in context of FERPA’s implementing regulations, the redacted records in
    this case retain their protected status as education records.
    The redacted Campus Police Services records fall within the scope of FERPA disclosure
    exemptions, and the Superior Court did not err in finding Evergreen appropriately applied FERPA.
    12
    49120-6-II
    E.      Evergreen Properly Withheld Records Protected by Attorney-Client Privilege
    Finally, West argues that Evergreen improperly invoked the attorney-client privilege to
    withhold records relevant to his request. West asserts that the information withheld pursuant to
    this exception were “factual matters” rather than confidential communications and “can not [sic]
    be transformed into a privileged document merely by being forwarded to an attorney.” Appellant’s
    Br. at 42. We disagree.
    West provides no citations to the record and cites a single case on this issue. He cites Dike
    v. Dike, 
    75 Wash. 2d 1
    , 11, 
    448 P.2d 490
    (1968), which stands for the general proposition that
    privilege is not absolute. Because West does not support his position, we decline to consider the
    argument. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 
    118 Wash. 2d 801
    , 809, 
    828 P.2d 549
    (1992).
    We do note, however, that the documents which were attachments to an e-mail seeking
    advice from assigned counsel were privileged communications.           In addition, Washington’s
    attorney-client privilege statute, RCW 5.60.060(2)(a), is also an “other statute” under the PRA.
    II.    ATTORNEY FEES
    In addition to reversal and remand, West requests “the imposition of penalties and fees.”
    Appellant’s Br. at 44. Under RCW 42.56.550(4), a party prevailing against an agency in a PRA
    suit is entitled to an award of fees and costs. Because West does not prevail in this action, he is
    not entitled to an award of fees and costs.
    13
    49120-6-II
    We affirm the trial court.
    A majority of the panel having determined that this opinion will not be printed in the
    Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
    it is so ordered.
    Melnick, J.
    We concur:
    Johanson, J.
    Maxa, A.C.J.
    14