Seiu Healthcare 775 N.w., V State Of Wa Dshs ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
April 12, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
SEIU HEALTHCARE 775NW, a labor No. 46797-6-II
organization,
Appellant/Cross-Respondent,
v.
STATE OF WASHINGTON, DEPARTMENT PUBLISHED OPINION
OF SOCIAL AND HEALTH SERVICES,
Respondent,
and
FREEDOM FOUNDATION,
Respondent/Cross-Appellant.
MAXA, J. — The Freedom Foundation (the Foundation) submitted a Public Records Act
(PRA)1 request to the Department of Social and Health Services (DSHS) seeking disclosure of
lists of Washington individual home care providers (individual providers) who provide personal
care services to functionally disabled persons. The Foundation’s stated purpose in requesting the
records was to attempt to correspond with the individual providers and notify them of their
constitutional right to refrain from union membership and fee payments.
1
Ch. 42.56 RCW.
No. 46797-6-II
SEIU Healthcare 775 NW (SEIU), the labor union representative of individual providers,
obtained a temporary restraining order (TRO) and requested a preliminary injunction enjoining
DSHS from releasing the lists of individual providers under the commercial purposes prohibition
of RCW 42.56.070(9). SEIU also asserted that the exemption for personal information of
welfare recipients in RCW 42.56.230(1) applied because the Foundation could use the lists to
discover the identities of the Medicaid beneficiaries who received care from the individual
providers. The trial court consolidated the preliminary injunction hearing with a permanent
injunction trial and refused to enjoin disclosure of the lists, ruling that SEIU had failed to
establish that either the prohibition or the exemption applied. SEIU appeals.2
We hold that (1) the trial court did not err under CR 65(a)(2) in combining the
preliminary injunction hearing with a permanent injunction trial on the merits, (2) RCW
42.56.070(9) does not preclude DSHS from disclosing the lists of individual providers because
the Foundation did not request the lists for commercial purposes, and (3) RCW 42.56.230(1)
does not preclude DSHS from disclosing the lists of individual providers because the lists are not
personal information maintained in the files of welfare recipients. We also hold that the
Foundation is not entitled to attorney fees for dissolving the TRO. Accordingly, we affirm the
trial court’s denial of SEIU’s request for preliminary and permanent injunctive relief.
2
The Foundation cross appeals, arguing that the trial court erred by ruling that SEIU has
associational standing to challenge the disclosure of the lists of individual providers, granting
SEIU’s motion for a TRO, and requiring the Foundation to respond to discovery regarding its
request. Because we affirm the trial court on other grounds, we do not address these issues.
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No. 46797-6-II
FACTS
SEIU is a labor union and the exclusive bargaining representative of all individual
providers in Washington. RCW 74.39A.240(3) defines “individual provider” as a person who
has contracted with DSHS to provide personal care or respite care services to functionally
disabled persons under a variety of programs, including Medicaid.
The Foundation is a Washington-based organization focused on various economic issues.
One of the Foundation’s central purposes is to educate public employees, including the
individual providers, about their constitutional rights to drop their membership in and payment of
fees to public sector unions. For example, the Foundation places targeted advertisements on
social media to explain the rights of public sector union members.
The Foundation’s PRA Request
On July 2, 2014, the Foundation submitted a PRA request to DSHS, which included a
request for:
5. All documents, emails, memos or other forms of communication between DSHS
and [SEIU] . . . for the time period [of] June 25th 2014 to July 2nd 2014.
6. The business/work contact information (including e-mail addresses) for all in-
home care providers (individual providers) and translators (language access
providers).
Clerk’s Papers (CP) at 45-46.
DSHS determined that an exemption prevented disclosure of individual providers’
contact information but that it was required to disclose the names of individual providers. DSHS
identified two lists that were responsive to the PRA requests: one with the names of
approximately 30,968 individual providers and one contained in an email exchange with the
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names of 95 additional individual providers. DSHS could not identify an exemption that would
preclude the disclosure of these lists.
DSHS notified SEIU of the Foundation’s PRA request and informed SEIU that DSHS
would release the records absent a court order. DSHS sent the Foundation a first installment of
records responsive to the request that did not include the names of the individual providers.
SEIU then notified DSHS that SEIU intended to seek an injunction prohibiting DSHS from
releasing a second installment of records.
Complaint and TRO
On October 1, SEIU filed a complaint for declaratory and injunctive relief against DSHS
and the Foundation requesting a preliminary and permanent injunction under RCW 42.56.540
prohibiting DSHS from releasing the lists of individual providers. SEIU then filed a motion for a
TRO to prevent the release of the lists.
The trial court heard oral argument on the TRO motion on October 3. SEIU argued that a
TRO was necessary because (1) disclosing the lists was prohibited under RCW 42.56.070(9)’s
“commercial purposes” provision; and (2) releasing the identity of individual providers would
violate RCW 42.56.230(1), which exempts from disclosure personal information regarding
welfare recipients.3
The trial court granted SEIU’s motion for a TRO, which enjoined DSHS from disclosing
the list of individual providers requested by the Foundation until the matter could be heard at a
3
SEIU also argued that the lists were exempt from disclosure under RCW 42.56.070(1) because
the release of a list of providers posed an unreasonable invasion of personal privacy interests.
The trial court ultimately rejected this argument and SEIU does not raise this issue on appeal.
Therefore, we do not address it.
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preliminary injunction hearing on October 16. The trial court also informed the parties that it
was inclined to consolidate the preliminary injunction hearing with a permanent injunction
hearing pursuant to CR 65, but that it would need to read the parties’ briefing first.
SEIU Discovery Requests
SEIU notified the Foundation under CR 30(b)(6) of its intent to depose a person or
persons from the Foundation with knowledge of several specific topics and filed a motion for
leave to take the CR 30(b)(6) deposition on an expedited basis. SEIU also served the Foundation
with two interrogatories and eight requests for production. The Foundation filed a motion for a
protective order prohibiting SEIU’s requested deposition and any other written discovery
because the subjects listed by SEIU in its deposition notice and written discovery were beyond
the scope of relevant issues.
The Foundation also submitted a declaration from Maxford Nelson, a policy analyst for
the Foundation. His declaration stated that (1) “[t]he names of the individual providers on the
requested public records will not be used for commercial purposes,” (2) “Freedom Foundation
will not attempt to solicit money or support from the individual providers,” (3) “Freedom
Foundation intends to use the list to educate individual providers about their constitutional
rights,” and (4) “Freedom Foundation does not seek these records on behalf of any other
individual or entity.” CP at 802-03.4
4
Nelson also submitted a second declaration on October 10 addressing the discovery requests,
and a third declaration on October 13 that repeated the statements in his first declaration and
stated that the Foundation does not promote specific for-profit businesses in any particular
industry, work on behalf of private commercial businesses, or promote them on its website.
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No. 46797-6-II
On October 10, the trial court denied SEIU’s request to take a CR 30(b)(6) deposition on
an expedited basis and granted in part and denied in part the Foundation’s motion for a protective
order. Specifically, the trial court ruled that SEIU would not be permitted to take a CR 30(b)(6)
deposition but that the Foundation would be required to provide written answers to the first three
topics of the CR 30(b)(6) deposition notice. Those three topics were:
1. All use(s) Freedom Foundation intends to make of the list of Individual
Providers it has requested from the Department of Social and Health Services, State
of Washington (“DSHS”) pursuant to Washington’s Public Records Act, RCW
42.56.
2. The identity of any person on whose behalf Freedom Foundation has requested
the list of Individual Providers from DSHS.
3. Contacts Freedom Foundation has initiated with any Individual Provider(s) since
January 1, 2011, and the nature and content of all communications between the
Freedom Foundation and Individual Providers, [. . .] limited to any efforts Freedom
Foundation has made to solicit funds from Individual Providers.
CP at 89.
At the October 10 discovery hearing, the trial court again hinted that it was planning on
consolidating the preliminary injunction hearing with a permanent injunction hearing.
The Foundation provided SEIU with its discovery responses on October 14. Regarding
its intended use of the lists of individual providers, the Foundation’s response stated: “Freedom
Foundation will seek to correspond with the Individual Providers, notifying them of their
constitutional right to refrain from union membership and fee payments pursuant to the U.S.
Supreme Court decision in Harris v. Quinn.”5 CP at 232. The Foundation further stated that the
correspondence would direct individual providers to a website containing information and forms
5
___ U.S. ___, 134 S. Ct. 2618, 189 L. Ed. 2d 620 (2014).
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No. 46797-6-II
related to opting out of membership with SEIU, but no link to the Foundation’s website. The
response concluded, “This is the sole use to which the list of Individual Providers will be put by
Freedom Foundation.” CP at 233. Another response stated that the Foundation had not
requested the list of individual providers on behalf of any other person or entity.6
The Foundation also submitted a fourth declaration from Nelson. Nelson stated that he
had drafted a letter to be sent to individual providers notifying them of “their altered legal rights
following the U.S. Supreme Court decision in Harris v. Quinn, specifically their rights to opt out
of union membership and automatic paycheck deductions.” CP at 243-44. Nelson also stated
that the Foundation had set up a separate website to “provide information and guidance to those
who wish to take advantage of their recently expounded constitutional right.” CP at 244.
Preliminary and Permanent Injunction Hearing
At the beginning of the October 16 hearing, the trial court expressly informed the parties
that under CR 65(a)(2) it was consolidating the preliminary injunction hearing with a permanent
injunction hearing. After oral argument, the trial court issued an extensive oral ruling. It ruled in
part that (1) RCW 42.56.070(9) did not prohibit disclosure of the lists of individual providers
“even assuming the accuracy of the allegations by the SEIU as to the motivations of the Freedom
Foundation and even assuming that further discovery would support the SEIU’s allegations”
because the intent of the requests was political, not commercial, Report of Proceedings (RP)
6
A third response provided extensive information regarding actual contacts with individual
providers and advertisements and mass communications that some individual providers may
have received.
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No. 46797-6-II
(Oct. 16, 2014) at 75; and (2) disclosure of the lists of individual providers was not exempt from
disclosure under RCW 42.56.230(1).
Therefore, the trial court denied SEIU’s motions for a preliminary and permanent
injunction. However, the trial court found good cause to extend the current TRO until November
5 to allow SEIU to appeal its ruling.
SEIU Appeal
SEIU appealed the trial court’s order denying a preliminary and permanent injunction to this
court. The Foundation filed a cross-appeal directly with the Washington Supreme Court, which
the Supreme Court transferred to this court. A commissioner of this court stayed the trial court’s
October 16 order and continued the trial court’s TRO enjoining DSHS from fulfilling the
Foundation’s PRA request pending a decision by this court.
ANALYSIS
A. LEGAL PRINCIPLES – PRA INJUNCTIONS
1. PRA Disclosure
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). Under RCW 42.56.070(1), a
government agency must disclose public records upon request unless a specific exemption in the
PRA applies or some other statute applies that exempts or prohibits disclosure of specific
information or records. Ameriquest Mortg. Co. v. Office of Att’y Gen. (Ameriquest II), 177
Wash. 2d 467, 485-86, 300 P.3d 799 (2013). The party seeking to prevent disclosure bears the
burden of establishing that an exemption applies. Ameriquest II, 177 Wash. 2d at 486; see RCW
42.56.550(1).
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No. 46797-6-II
RCW 42.56.030 expressly requires that the PRA be “liberally construed and its
exemptions narrowly construed . . . to assure that the public interest will be fully protected.” As
a result, we must liberally construe the PRA in favor of disclosure. West v. Port of Olympia, 183
Wash. App. 306, 311, 333 P.3d 488 (2014). When evaluating a PRA claim, we also 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).
We review challenges to an agency action under the PRA de novo. RCW 42.56.550(3);
Resident Action Council, 177 Wash. 2d at 428. “Where the record consists only of affidavits,
memoranda of law, and other documentary evidence, an appellate court stands in the same
position as the trial court in reviewing agency action challenged under the PRA.” Robbins
Geller Rudman & Dowd LLP v. Office of the Att’y Gen., 179 Wash. App. 711, 719-20, 328 P.3d
905 (2014).
2. Injunctions Under RCW 42.56.540
A party other than a government agency attempting to prevent the disclosure of public
records under the PRA may seek an injunction under RCW 42.56.540. Ameriquest II, 177
Wash. 2d at 487. RCW 42.56.540 provides:
The examination of any specific public record may be enjoined if, upon motion and
affidavit by an agency or its representative or a person who is named in the record
or to whom the record specifically pertains, the superior court . . . finds that such
examination would clearly not be in the public interest and would substantially and
irreparably damage any person, or would substantially and irreparably damage vital
governmental functions.
Under this statute, a non-governmental party must prove that (1) the record in question
specifically pertains to that party, (2) an exemption applies, and (3) the disclosure would not be
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in the public interest and would substantially and irreparably harm that party or a vital
government function. Ameriquest II, 177 Wash. 2d at 487.
In applying RCW 42.56.540, the trial court first determines whether a PRA exemption
applies. See Bainbridge Island Police Guild v. City of Puyallup, 172 Wash. 2d 398, 408, 259 P.3d
190 (2011). Only if an exemption applies does the trial court address whether an injunction is
appropriate under the statutory requirements: whether disclosure would not be in the public
interest and would substantially and irreparably damage a person or vital government functions.
See id. at 408, 420.
We review injunctions issued under the PRA de novo. Robbins Geller, 179 Wash. App. at
720.
3. TRO/Preliminary Injunction
RCW 42.56.540 does not discuss the different stages of injunctive relief. In general, a
party in a PRA case can obtain a TRO or a preliminary injunction before establishing a right to a
permanent injunction. See Nw. Gas Ass’n. v. Wash. Utils. & Transp. Comm’n., 141 Wash. App.
98, 113, 168 P.3d 443 (2007) (stating that the process generally progresses from temporary
restraining order, to preliminary injunction, to permanent injunction). A TRO and a preliminary
injunction both are designed to preserve the status quo until the trial court can conduct a full
hearing on the merits. Id. at 115-16. At a preliminary injunction hearing, the trial court does not
need to resolve the merits of the issues for permanent injunctive relief. Id. at 116. Instead, the
trial court considers only the likelihood that the moving party ultimately will prevail at a trial on
the merits. Id.
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In the context of RCW 42.56.540, a party seeking a TRO or preliminary injunction to
prevent the disclosure of certain records must show a likelihood that an exemption applies and
that the disclosure would clearly not be in the public interest and would substantially and
irreparably damage any person or vital government functions. See Ameriquest II, 177 Wash. 2d at
487.
To obtain permanent injunctive relief, a party generally must establish three elements:
(1) a clear legal or equitable right, (2) a well-grounded fear of immediate invasion of that right,
and (3) that the act complained of will result in actual and substantial injury. Huff v. Wyman,
184 Wash. 2d 643, 651, 361 P.3d 727 (2015); see also Nw. Gas Ass’n, 141 Wash. App. at 115. It is
unclear how these requirements relate to the injunction requirements of RCW 42.56.540, and no
case has applied these general requirements in a RCW 42.56.540 case. However, the first two
requirements for a permanent injunction relate to the existence of an exemption and the third
requirement is consistent with a similar requirement in RCW 42.56.540.
B. CONSOLIDATION UNDER CR 65(A)(2)
SEIU argues that the trial court erred by consolidating the preliminary injunction hearing
with a trial on the merits for a permanent injunction under CR 65(a)(2) because (1) the trial court
gave inadequate notice of the consolidation and (2) consolidation prevented SEIU from
conducting full discovery on whether the Foundation made the request for the lists of individual
providers for commercial purposes. We disagree.
1. Legal Principles
In general, a trial court will not “adjudicate the ultimate rights in the case when
addressing the propriety of a preliminary injunction.” Rabon v. City of Seattle, 135 Wash. 2d 278,
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285, 957 P.2d 621 (1998). However, CR 65(a)(2) provides that “[b]efore or after the
commencement of the hearing of an application for a preliminary injunction, the court may order
the trial of the action on the merits to be advanced and consolidated” with the preliminary
injunction hearing.
Washington law is unclear regarding the circumstances in which a trial court can
consolidate a preliminary injunction hearing with a trial on the merits. Division One of this court
in Rabon v. City of Seattle noted that “where the essential facts are not in dispute and the only
issue on the merits is an issue of law,” the trial court necessarily decides the merits of the case
when it determines whether a preliminary injunction is appropriate. 84 Wash. App. 296, 300-01,
932 P.2d 646 (1996), rev’d on other grounds, 135 Wash. 2d 278, 957 P.2d 621 (1998). Following
this discussion, the court acknowledged CR 65(a)(2) in a footnote and stated: “We recommend
consolidation in cases without issues of fact.” Rabon, 84 Wash. App. at 301 n.1. Citing Rabon,
Division One more recently has implied that consolidation is appropriate under CR 65(a)(2)
when “the essential facts are not in dispute and the only issue on the merits is an issue of law.”
City of Seattle v. Davis, 174 Wash. App. 240, 245, 306 P.3d 961 (2012). We adopt this standard
for consolidation under CR 65(a)(2).
Washington law also is silent regarding the standard of review. Neither party addresses
this issue. Because CR 65(a)(2) authorizes the trial court to consolidate without placing any
limitations on the trial court’s exercise of that authority, we adopt an abuse of discretion
standard.
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No. 46797-6-II
2. Notice of Consolidation
In order to comply with CR 65(a)(2), the trial court must expressly state at the
preliminary injunction hearing that it is consolidating that hearing with a trial on the merits.
Ameriquest Mortg. Co. v Att’y Gen. of Wash. (Ameriquest I), 148 Wash. App. 145, 155, 199 P.3d
468 (2009). In Northwest Gas Association, this court reversed a trial court’s denial of a
preliminary injunction under the PRA because the trial court failed to expressly inform the
parties that it was consolidating the preliminary injunction hearing with a permanent injunction
trial on the merits. 141 Wash. App. at 114-15. This court made the same holding in Ameriquest I
based on similar facts. 148 Wash. App. at 156.
However, this case is distinguishable from both of those cases. At the October 3 TRO
hearing, the trial court informed the parties that it might consolidate the preliminary injunction
hearing with a permanent injunction trial. At the October 10 discovery hearing, the trial court
again hinted that it was planning on consolidating the preliminary injunction hearing with a
permanent injunction hearing. At the beginning of the October 16 preliminary injunction
hearing, before the parties presented any argument, the trial court formally ordered the
consolidation of the preliminary hearing with a permanent injunction trial on the merits. RP
(Oct. 16, 2014) at 6-7.
SEIU argues that the trial court erred because the trial court did not give the parties
advance notice of its intent to consolidate. However, the trial court’s statements on October 3
and October 10 provided some notice that the injunction hearings might be consolidated. The
parties certainly were aware that consolidation was a strong possibility.
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In addition, CR 65(a)(2) does not require advance notice that the trial court will be
consolidating the injunction hearings. Instead, the rule states that the trial court can order
consolidation “[b]efore or after the commencement” of the preliminary injunction hearing. CR
65(a)(2) (emphasis added). Here, at the beginning of the hearing on October 16 the trial court
expressly informed the parties of its intent to consolidate the preliminary injunction and
permanent injunction hearings.
We hold that the trial court provided adequate notice under CR 65(a)(2) when it
consolidated the preliminary injunction and permanent injunction hearings.
3. Decision to Consolidate
SEIU argues that the trial court erred in consolidating the preliminary injunction and
permanent injunction hearings because that decision prevented SEIU from conducting full
discovery on the key factual issue under RCW 42.56.070(9): whether the Foundation made its
request for the lists of individual providers for commercial purposes. We disagree that the trial
court abused its discretion.
First, SEIU had received the Foundation’s responses to the discovery that the trial court
allowed. SEIU argues that it should have been allowed to take the CR 30(b)(6) deposition and
receive full responses to the written discovery it propounded. However, the trial court expressly
stated that it would not allow the CR 30(b)(6) deposition and expressly limited SEIU’s ability to
propound discovery requests to three narrow topics. SEIU does not assign error to the trial
court’s discovery order, and therefore waives any challenge to the order.
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The record shows that SEIU was provided with the Foundation’s discovery on October
14. Therefore, by the time of the hearing no permitted SEIU discovery requests were
outstanding.
Second, the injunction hearing focused on the Foundation’s purpose in requesting the
lists of individual providers. By the time of the hearing, the Foundation had submitted
interrogatory answers and four declarations of Nelson addressing that purpose: to contact
individual providers and inform them of their constitutional right to refrain from union
membership and fee payments. The interrogatory answers and declarations were sufficient for
the trial court to determine whether the commercial purposes prohibition of RCW 42.56.070(9)
applied to the Foundation’s request.
SEIU argues that it was deprived of the opportunity to fully explore the Foundation’s
discovery responses and declarations. However, in Ameriquest II, the Supreme Court held that
the trial court did not abuse its discretion in ruling that the party challenging a PRA request was
not entitled to any discovery when a declaration was detailed enough to provide the trial court
with a sufficient basis for its decision. 177 Wash. 2d at 494, 499-500.
Third, the trial court “resolved” any outstanding factual disputes by assuming the truth of
SEIU’s allegations. The trial court stated:
[I]f I can analyze this “intent” as being outside the scope of the provision, even
assuming the facts as alleged by the SEIU and even assuming that further discovery
substantiate SEIU’s view of the Freedom Foundation’s “intent,” then I believe I can
make this call as [a] matter of law without the need for more discovery.
RP (Oct. 16, 2014) at 74. The trial court concluded:
[E]ven assuming the accuracy of the allegations by the SEIU as to the motivations
of the Freedom Foundation and even assuming that further discovery would support
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the SEIU’s allegations, I conclude that the “intent” of the Freedom Foundation in
these requests was political, not commercial.
RP (Oct. 16, 2014) at 75.
Under the circumstances of this case, the trial court was faced with a preliminary
injunction motion where the essential facts were not in dispute and the only issue on the merits
was a legal question. As a result, we hold that the trial court did not abuse its discretion in
consolidating the preliminary injunction hearing with a trial on the merits under CR 65(a)(2).
C. RCW 42.56.070(9) – COMMERCIAL PURPOSES PROHIBITION
SEIU argues that RCW 42.56.070(9) prohibits DSHS from disclosing the lists of
individual providers because the Foundation requested the lists for commercial purposes. The
Foundation’s stated purpose in requesting the lists was to attempt to correspond with the
individual providers and notify them of their constitutional right to refrain from union
membership and fee payments. We hold that this purpose is not a commercial purpose because it
is not designed to generate revenue, and therefore that RCW 42.56.070(9) does not bar DSHS’s
disclosure of the lists of individual providers.
1. Statutory Language
RCW 42.56.070(9) states:
This chapter shall not be construed as giving authority to any agency . . . to give,
sell or provide access to lists of individuals requested for commercial purposes, and
agencies . . . shall not do so unless specifically authorized or directed by law.
The plain statutory language clearly focuses on the reason the requesting party has requested the
list of individuals. The requesting party must be seeking the disclosure of the list for
“commercial purposes.” RCW 42.56.070(9).
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However, the PRA does not define “commercial purposes.” And although the Attorney
General’s Office (AGO) has issued opinions attempting to define this term (discussed below), no
Washington case has addressed this term or the application of RCW 42.56.070(9).
2. Construction of RCW 42.56.070(9)
Statutory interpretation is a matter of law that we review de novo. Jametsky v. Olsen,
179 Wash. 2d 756, 761, 317 P.3d 1003 (2014). The primary goal of statutory interpretation is to
determine and give effect to the legislature’s intent. Id. at 762. To determine legislative intent,
we first look to the plain language of the statute. Id. We consider the language of the provision
in question, the context of the statute in which the provision is found, and related statutes. In re
Adoption of T.A.W., 188 Wash. App. 799, 809, 354 P.3d 46 (2015). When the statute at issue or a
related statute includes an applicable statement of purpose, we interpret statutory language in a
manner consistent with that stated purpose. Id.
To discern the plain meaning of undefined statutory language, we give words their usual
and ordinary meaning and interpret them in the context of the statute in which they appear.
AllianceOne Receivables Mgmt., Inc. v. Lewis, 180 Wash. 2d 389, 395-96, 325 P.3d 904 (2014).
“We may use a dictionary to discern the plain meaning of an undefined statutory term.” Nissen
v. Pierce County, 183 Wash. 2d 863, 881, 357 P.3d 45 (2015). If the plain meaning of a statute is
unambiguous, we must apply that plain meaning as an expression of legislative intent without
considering extrinsic sources. Jametsky, 179 Wash. 2d at 762. We do not rewrite unambiguous
statutory language under the guise of interpretation. Cerrillo v. Esparza, 158 Wash. 2d 194, 201,
142 P.3d 155 (2006).
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A preliminary issue here is whether RCW 42.56.070(9) should be narrowly or liberally
construed. As discussed above, RCW 42.56.030 is clear that “exemptions” must be narrowly
construed. The Foundation relies on this principle of construction in arguing for a narrow
construction of RCW 42.56.070(9). SEIU argues that RCW 42.56.070(9) represents a
“prohibition” rather than an “exemption,” and therefore narrow construction is not appropriate.
The statutory language is somewhat unclear as to whether the commercial purposes
provision constitutes an exemption. RCW 42.56.070(1) refers to the provision as an exemption,
stating that all public records must be made available “unless the record falls within the specific
exemptions of [subsection (9)] of this section, this chapter, or other statute which exempts or
prohibits disclosure of specific information or records.”7 On the other hand, RCW 42.56.070(9)
does not use exemption language, stating instead that the PRA “shall not be construed” as
authorizing the release of lists of individuals requested for commercial purposes and that
agencies “shall not do so unless specifically authorized or directed by law.”
However, the distinction between an exemption and a prohibition largely is immaterial.
RCW 42.56.070(1) does not distinguish between the two, referring to any other statute that
“exempts or prohibits” disclosure. More significantly, RCW 42.56.030 does more than require
the narrow construction of exemptions. That statute expressly states:
The people insist on remaining informed so that they may maintain control over the
instruments that they have created. This chapter shall be liberally construed and
its exemptions narrowly construed to promote this public policy and to assure that
the public interest will be fully protected.
7
RCW 42.56.070(1) actually refers to “subsection (6)” rather than “subsection (9)”, but
subsection 6 was renumbered as subsection 7 in 1992 and as subsection 9 in 1995. LAWS OF
1995, ch. 341 § 1; LAWS OF 1992, ch. 139 § 3.
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In other words, the entire PRA must be liberally construed in favor of access to public records.
We conclude that RCW 42.56.070(9) must be construed in favor of disclosure regardless
of whether it states an exemption or prohibition. This principle of construction is consistent with
the PRA’s strong mandate for broad disclosure of public records. See Resident Action Council,
177 Wash. 2d at 431.
3. Meaning of “Commercial Purposes”
a. Ordinary Meaning
As discussed above, “commercial purposes” is not defined in the PRA. Therefore, we
look first to the dictionary definition of “commercial.” See Nissen, 183 Wash. 2d at 881.
The first dictionary definition of “commercial” is “of, in, or relating to commerce.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 456 (2002). One definition of
“commerce” is “the exchange or buying and selling of commodities.” Id. These definitions
suggest that a “commercial purpose” involves some type of sale transaction.
The second dictionary definition of “commercial” is “from the point of view of profit:
having profit as the primary aim.” Id. This definition suggests that a “commercial purpose”
involves the generation of financial gain. This definition is somewhat broader than the first, in
that it may apply to business activities that do not involve the sale of a product or service.
In determining which definition the legislature intended, we consider two formal AGO
opinions addressing the meaning and application of the prior statutes that were recodified as
RCW 42.56.070(9). In a 1975 opinion, the AGO addressed several questions directed to
application of the “commercial purposes” provision.8 The AGO stated that the provision applies
8
In 1975, the commercial purposes provision was codified in former RCW 42.17.260(5) (1975).
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No. 46797-6-II
to a list of names when (1) the requesting person “intends to use it to contact or in some way
personally affect the individuals identified on the list,” and (2) “when the purpose of the contact
would be to facilitate that person’s commercial activities,” 1975 Op. Att’y Gen. No. 15, at 10.
With regard to the term “commercial,” the AGO stated that “it is possible to limit it so as
to exclude business activities not involved in [the] buying and selling of goods. However, we
believe that the word as here used was intended to cover a broader range of business activity.”
Id. at 9. The AGO stated that “a narrower definition of ‘commercial’ could lead to the granting
of access to one type of business activity and not to another.” Id. at 10. As a result, the AGO
concluded that “commercial” should be broadly defined as “encompassing any ‘profit expecting’
business activity.” The AGO stated that this definition includes the activities of any form of
“business enterprise.” Id.9
In 1998, the AGO issued an opinion addressing whether the “commercial purposes”
provision10 applied when a commercial firm’s purpose in requesting a list was not to contact
individuals for purposes of commercial solicitation, but to use the records for general business
purposes. 1998 Op. Att’y Gen. No. 2. The AGO repeated the conclusion in AGO 1975 No. 15
that the word “commercial” broadly encompasses any profit expecting business activity. Id. The
9
Using this definition, the AGO concluded that commercial purposes existed for the requests of
lists in order to (1) facilitate the organization of a trade group, (2) identify individuals for the
purpose of attempting to sell products or services, and (3) sell the list. 1975 Op. Att’y Gen. No.
15, at 11-14. The AGO concluded that commercial purposes did not exist for the requests of lists
to (1) solicit membership in an antique car owners club organized as a non-profit organization,
(2) identify registered owners of automobiles blocking emergency exit or no parking areas when
the requester is a commercial entity, and (3) create statistics which are then sold. Id. at 12-14.
10
In 1998, the commercial services provision was codified in former RCW 42.17.260(9)(1995).
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AGO clarified that the term “commercial purpose” is not limited to situations in which
individuals are directly contacted or personally affected.11 Id.
No Washington court has adopted or even addressed these AGO opinions. But formal
AGO opinions are entitled to weight and may be persuasive authority because (1) they represent
the legal opinion of the legal adviser of state officers designated by article. III, section 21 of the
Washington Constitution, (2) we presume that the legislature is aware of any formal AGO
opinions issued and this court may treat a failure to amend the statute in response to the formal
opinion as legislative acquiescence to the AGO opinion, and (3) when an opinion is issued close
in time to the passage of the statute in question, “it may shed light on the intent of the legislature,
keeping in mind, of course, that the attorney general is a member of a separate branch of
government.” Five Corners Family Farmers v. State, 173 Wash. 2d 296, 308, 268 P.3d 892 (2011).
Here, the AGO is charged with advising state agencies on PRA issues, and it necessarily
has developed some expertise in this area. In addition, the legislature has not amended the PRA
in response to the 1975 and 1998 opinions discussed above. Therefore, we interpret
“commercial purposes” consistent with these AGO opinions. Combining the second dictionary
definition of “commercial” and the definition stated in the AGO opinions, a reasonable definition
of “commercial purposes” in RCW 42.56.070(9) would include any business activity intended to
generate profits.
11
DSHS also addresses two other AGO opinions, which are less relevant to our construction of
commercial purposes. See 1973 Op. Att’y Gen. No. 113, at 2 (addressing the question of what is
a list of individuals); and 1975 Op. Att’y Gen. No. 38, at 3 (concluding that a welcome service
requested a list for commercial purposes when it wanted to, in part, make new residents “aware
of business commercial entities and their services in the area”).
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The Foundation and amici Allied Daily Newspapers of Washington and Washington
Coalition for Open Government argue that this definition cannot apply to the Foundation because
it is a nonprofit organization that does not generate profits. However, even a nonprofit
organization can generate revenue. And the 1975 AGO opinion stated that the term
“commercial” referred to any form of business enterprise. 1975 Op. Att’y Gen. No. 15, at 10.
Therefore, we refine this definition to clarify that “commercial purposes” in RCW 42.56.070(9)
includes a business activity by any form of business enterprise intended to generate revenue or
financial benefit.
b. Direct vs. Indirect Profit Generation
The Foundation and amici argue that a request for a list constitutes a commercial purpose
only if the requester intends to profit from the direct use of the list itself. In support of this
interpretation, amici point out that newspapers should not be subject to RCW 42.56.070(9)
simply because the newspaper’s use of a list of individuals might indirectly generate revenue by
selling more newspapers.
On the other hand, SEIU argues that “commercial purpose” must be interpreted to include
indirect economic benefits to the requesting party. Here, SEIU argues that the Foundation has
benefited in the following ways: (1) economically injuring SEIU, which “it apparently perceives
as an economic competitor;” (2) increasing the Foundation’s membership and funds;
(3) decreasing SEIU’s membership and funds; (4) assisting the “commercial businesses with
which it is associated;” and (5) bringing “credit and attention to its own extreme political views.”
The Foundation’s position of requiring that a requestor intend to use the list for direct
profit is more consistent with interpreting RCW 42.56.070(9) in a manner that favors disclosure.
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No. 46797-6-II
If indirect benefits are considered, a wide range of requests might fall within the commercial
purposes provision and the policy of full disclosure of public records would be thwarted. In
addition, a comment in the 1975 AGO opinion supports the Foundation’s position. The AGO
stated: “Where the requester’s potential commercial benefit is remote and ephemeral and there is
a clear purpose other than commercial benefit, the statute does not prohibit supplying the
information in list form.”12 1975 Op. Att’y Gen. No. 15, at 13.
4. Identifying the Requester’s Purpose
DSHS requests that we provide guidance regarding a government agency’s obligation to
determine whether a request for a list of individuals is for a commercial purpose. DSHS
suggests that an agency’s inquiry should be limited to the four corners of the request and the
content of the records requested. We disagree that an agency’s inquiry is so limited when the
agency has some indication that the list might be used for commercial purposes.
RCW 42.56.070(9) expressly states that a government agency “shall not” provide access
to lists of individuals requested for commercial purposes. This language impliedly places some
burden on the agency to avoid disclosing lists of individuals to a party intending to use the list
for commercial purposes.
12
SEIU cites two federal cases discussing whether a party obtained a commercial benefit or had
a commercial interest or for purposes of certain sections of the federal Freedom of Information
Act. Nat’l Sec. Archive v. U.S. Dep’t of Def., 530 F. Supp. 2d 198, 203 (D.D.C. 2008);
VoteHemp, Inc. v. Drug Enf’t Admin., 237 F. Supp. 2d 55, 65 (D.D.C. 2002). However, these
sections are not in any way similar to RCW 42.56.070(9) and therefore are not helpful. See
Francis v. Dep’t of Corr., 178 Wash. App. 42, 58, 313 P.3d 457 (2013). Also unhelpful are cases
SEIU cites interpreting the Lanham Act, 15 U.S.C. § 1051 et seq., which is the primary federal
law regulating federal trademarks. See Jews for Jesus v. Brodsky, 993 F. Supp. 282, 307 (D.N.J
1998); Brach Van Houten Holding, Inc. v. Save Brach’s Coal. for Chi., 856 F. Supp. 472, 474
(N.D. Ill. 1994).
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The PRA generally prohibits an agency from inquiring about the purpose of a records
request, but it provides an express exception for RCW 42.56.070(9). RCW 42.56.080 states:
Agencies shall not distinguish among persons requesting records, and such persons
shall not be required to provide information as to the purpose for the request except
to establish whether inspection and copying would violate RCW 42.56.070(9) or
other statute which exempts or prohibits disclosure of specific information or
records to certain persons.
(Emphasis added.) This statute clearly implies that a government agency can require a requesting
party to provide information about whether a list of individuals is being requested for commercial
purposes.13
The PRA offers no guidance regarding when an agency must investigate further and the
level of such investigation before disclosing a list of individuals. We hold that the agency must
investigate when it has some indication that the list might be used for commercial purposes.
Whether an agency must investigate will depend on a case-by-case determination based on the
identity of the requester, the nature of the records requested, and any other information available
to the agency.
DSHS suggests that if an agency has an obligation to investigate, an affirmation from the
requesting party that the intended use of the list is not for commercial purposes is sufficient. The
problem with such an affirmation is that it allows the requesting party to control whether a list of
individuals will be released without any independent inquiry by the agency. Therefore, merely
13
DSHS cites to two cases where this court and others have constrained an agency’s examination
of a PRA request to the four corners of the document. See, e.g., Bainbridge Island, 172 Wash. 2d at
414; Koenig v. City of Des Moines, 158 Wash. 2d 173, 183-84, 142 P.3d 162 (2006). However,
neither case involved a request for a list of individuals that potentially implicated RCW
42.56.070(9) or application of RCW 42.56.080.
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No. 46797-6-II
requiring an affirmation from the requesting party is not sufficient to satisfy an agency’s
obligation to investigate under RCW 42.56.070(9). When under the specific case facts an
agency has an obligation to investigate, it must at least require a party requesting a list of
individuals to state the purpose of the request. Such a requirement is permissible under RCW
42.56.080, and it would allow the agency to independently evaluate whether the requesting
party’s purpose is a commercial one.
5. Application of RCW 42.56.070(9) to Foundation Request
The question here is whether the purpose of the Foundation’s request for the lists of
individual providers is commercial – to generate revenue or financial benefit from the direct use
of the lists. We hold that the Foundation’s request is not for commercial purposes.
As discussed above, the Foundation’s stated purpose in requesting the lists is to
correspond with the individual providers and notify them of their constitutional right to refrain
from union membership and fee payments. Notifying individuals of their constitutional rights
does not directly involve the generation of revenue or financial benefit. As the trial court noted,
this purpose appears to be political rather than commercial.
In addition, through the Nelson declarations the Foundation expressly disavowed any
intent to use the list of individual providers to directly generate revenue. According to Nelson,
the Foundation will not (1) attempt to solicit money or financial support from the individual
providers, (2) attempt to make individual providers aware of business commercial entities in
their area, or (3) supply the names of individual providers to any business, third party individual,
or any other entity. In addition, the Foundation set up a separate website to provide information
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No. 46797-6-II
to individual providers that does not contain a link to the Foundation’s website (which apparently
solicits donations).
However, SEIU argues that the Foundation would benefit from direct use of the list –
contacting the individual providers – in several ways. First, SEIU argues that the Foundation’s
actions will economically injure SEIU, including by decreasing SEIU’s membership and funds.
SEIU suggests that this use constitutes a commercial purpose because the Foundation perceives
SEIU as an “economic competitor.”
Economically injuring SEIU would not directly generate revenue or financial benefit for
the Foundation. Even if SEIU ceases to exist there will be no direct financial benefit to the
Foundation. Therefore, economically injuring SEIU does not fall within the definition of
“commercial purposes” that we adopt above. We decline to hold under the facts of this case that
a nonprofit entity decreasing the revenue of another nonprofit entity is a type of commercial
purpose under RCW 42.56.070(9).
Second, SEIU argues that the Foundation’s actions will increase the Foundation’s
membership and funds. However, SEIU does not explain how contacting the individual
providers would directly increase membership or donations. The Foundation emphasizes that it
will not solicit donations from the individual providers. There also is no indication that the
Foundation will ask individual providers to become Foundation members.
SEIU argues that the Foundation fundraises by broadly publicizing its goal to defund
SEIU and therefore attacking SEIU may generate donations. However, SEIU does not explain
how merely obtaining the lists and contacting the individual providers will cause others to join
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No. 46797-6-II
the Foundation or donate money to the Foundation. Any such a benefit is too attenuated to
constitute a commercial purpose.
Third, SEIU argues that the Foundation’s actions will assist the “commercial businesses
with which it is associated.” Br. of Appellant at 21. However, SEIU does not explain how
contacting the individual providers would assist other commercial businesses or identify those
businesses. And the Foundation states that it does not promote specific for-profit businesses in
any particular industry.
Fourth, SEIU argues that the Foundation’s actions will “bring credit or attention to its
own extreme political views.” Br. of Appellant at 21. However, SEIU does not explain how
bringing attention to the Foundation’s political views will provide the Foundation with some
direct financial benefit. SEIU may be arguing that informing the individual providers of their
political views will cause the individual providers or others to join the Foundation or donate
money to the Foundation. But such a benefit is too attenuated to constitute a commercial
purpose.
Accordingly, we hold that RCW 42.56.070(9) does not preclude the disclosure of the lists
of individual providers that the Foundation requested.14 A party must prove the existence of a
PRA exemption to obtain a PRA injunction under RCW 42.56.540. Ameriquest II, 177 Wash. 2d at
487. Therefore, SEIU is not entitled to injunctive relief under RCW 42.56.540 on this basis.
14
Our holding is expressly based on the Foundation’s repeated representations that it will not (1)
attempt to solicit money or financial support from the individual providers, (2) attempt to make
individual providers aware of business commercial entities in their area, or (3) supply the names
of individual providers to any business, third party individual, or any other entity.
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No. 46797-6-II
E. RCW 42.56.230(1) – RECORDS IDENTIFYING WELFARE RECIPIENTS
SEIU argues that RCW 42.56.230(1) exempts the lists of individual providers from
release because the release of the list would allow the Foundation to discover the names of
Medicaid beneficiaries who receive care from the individual providers. We disagree that this
exemption applies here.
1. Statutory Language
RCW 42.56.230 states:
The following personal information is exempt from public inspection and copying
under this chapter:
(1) Personal information in any files maintained for students in public schools,
patients or clients of public institutions or public health agencies, or welfare
recipients.
The parties appear to agree that the Medicaid beneficiaries who receive care from the
individual providers are “welfare recipients” under RCW 42.56.230(1).
Under the plain language of RCW 42.56.230(1), this exemption is inapplicable to
the lists of individual providers. The exemption applies only to personal information in
any files maintained for welfare recipients. SEIU does not contend that the lists of
medical providers were in any such files.
2. Extension of RCW 42.56.230(1)
SEIU argues that RCW 42.56.230(1) should apply here because disclosure of the name of
individual providers is “tantamount to the release of the identities of Medicaid beneficiaries.”
Br. of Appellant at 34. SEIU claims that because a significant number of individual providers
reside in the homes of Medicaid beneficiaries, revealing the identities of those individual
providers could effectively reveal the identities of those beneficiaries.
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No. 46797-6-II
The Supreme Court rejected a similar argument in Koenig v. City of Des Moines, 158
Wash. 2d 173, 142 P.3d 162 (2006). Koenig involved former RCW 42.17.31901(1992), which
exempted from disclosure the name and other specifically defined information identifying child
victims of sexual assault. Id. at 181. The father of a child victim of sexual assault submitted a
PRA request to the city, requesting all records concerning his daughter. Id. at 178. The trial
court redacted the victim’s name, address, and relationship to the assailant, and ordered the
release of the redacted records. Id. at 178-79. The city argued on appeal that if it released the
records in response to a request identifying a minor by name, the very act of disclosure would
identify the minor as a child victim of sexual assault. Id. at 181.
The court focused on the plain statutory language, which prohibited the disclosure of
information revealing the identity of child victims of sexual assault. Id. at 182. The court stated
that “[b]y its plain language, this provision excludes from disclosure only the information falling
within one of the enumerated categories, and not entire records.” Id. Because the records
themselves (after redaction) did not contain any identifying information regarding Koenig’s
daughter, the exemption was inapplicable. Id. at 182-83. The court emphasized that there was
no authority for the notion that it could look beyond the four corners of the records at issue to
determine whether they were properly withheld. Id. at 183.
Similarly, Division One of this court rejected this type of argument in King County v.
Sheehan, 114 Wash. App. 325, 57 P.3d 307 (2002). In Sheehan, a PRA request was submitted to
local police agencies asking for a list of the names of law enforcement officers. Id. at 332. King
County argued that although the names themselves were not subject to a PRA exemption,
29
No. 46797-6-II
releasing the list of names could allow someone to track down their home addresses and other
personal, nondisclosable information from other sources. Id. at 344-45.
The court rejected what it characterized as a “linkage” argument – “that any information,
no matter how public it may be, is nondisclosable if it could somehow lead to other, private
information being tracked down from other sources.” Id. at 345-46. The court stated:
It is a fact of modern life in this age of technology that names can be used to obtain
other personal information from various sources, but we conclude that this is not
sufficient to prevent disclosure of the names of police officers under the act.
Id. at 346.
The holdings in Koenig and Sheehan control here. As noted above, RCW 42.56.230(1)
does not apply to the lists of individual providers. The fact that releasing the names of individual
providers may effectively release the names of Medicaid beneficiaries, as in Koenig, or allow the
requestor to discover the names of Medicaid beneficiaries through investigation, as in Sheehan,
does not allow us to ignore the plain language of RCW 42.56.230(1).
SEIU acknowledges the holdings in Koenig and Sheehan, but argues that we should reject
those cases. SEIU argues that Sheehan did not rule that a linkage analysis was intrinsically
illegitimate, and that both Koenig and Sheehan were issued prior to the current technological age.
Even if we found these arguments persuasive, SEIU cites to no Washington case law or statute
that would permit us to construe RCW 42.56.230(1) to encompass a situation that is not reflected
in the plain language of the statute.15 Therefore, we refrain from adopting SEIU’s construction.
15
SEIU also relies on Tacoma Pub. Library v. Woessner, where this court ruled that release of
employee identification numbers would be an invasion of privacy because those numbers would
allow the requestor to determine exempt personal information regarding the employees. 90 Wn.
App. 205, 221-222, 951 P.2d 357 (1998). There the court was examining whether the disclosure
of the requested information would violate an employee’s right to privacy, and was required to
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No. 46797-6-II
We hold that RCW 42.56.230(1) does not exempt the disclosure of the lists of individual
providers that the Foundation requested. A party must prove the existence of a PRA exemption
to obtain a PRA injunction under RCW 42.56.540. Ameriquest II, 177 Wash. 2d at 487. Therefore,
SEIU was not entitled to a preliminary or permanent injunction under RCW 42.56.540 on this
basis.
F. ATTORNEY FEES FOR TRO
The Foundation argues that it is entitled to reasonable attorney fees under equitable
principles because it was successful in dissolving the trial court’s TRO. We do not award the
Foundation reasonable attorney fees.
We may award attorney fees to a party that prevails in dissolving a wrongfully issued
injunction or temporary restraining order. Burt v. Dep’t of Corr., 191 Wash. App. 194, 205, 361
P.3d 283 (2015). However, this award is discretionary. Confederated Tribes of Chehalis
Reservation v. Johnson, 135 Wash. 2d 734, 758, 958 P.2d 260 (1998). “The purpose of the rule
permitting recovery for dissolving a restraining order is to deter plaintiffs from seeking relief
prior to a trial on the merits. The purpose of the rule would not be served where injunctive relief
prior to trial is necessary to preserve a party’s rights pending resolution of the action.” Id. at 758
(internal citations omitted).
Here, a trial on the merits would also have been fruitless had the trial court lifted the
TRO. Accordingly, we deny the Foundation’s request for reasonable attorney fees.
determine whether such disclosure would be highly offensive. Id. at 216-222. Neither situation
is present in this case.
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No. 46797-6-II
We affirm the trial court’s denial of SEIU’s request for preliminary and permanent
injunctive relief.
MAXA, A.C.J.
We concur:
MELNICK, J.
SUTTON, J.
32