Ameriquest Mortg. Co. v. Office of Att'y Gen.

FILE
IN CLERKS OFFICE
~COURT, STATE OF WASHINGTON
DATE ' MAY ~ 9 2013
ma~.v
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
AMERJQUEST MORTGAGE
COMPANY, a Delaware
corporation, No. 87661-4
Appellant, En Bane
v. Filed MAY 09 2013
OFFICE OF THE ATTORNEY
GENERAL OF WASHINGTON,
Respondent,
LAW OFFICES OF MELISSA A.
HUELSMAN,
Respondent/Intervenor.
J.M. JOHNSON, J.-This is the second time we have considered this
controversy over records Ameriquest Mortgage Company disclosed to the
Washington State Office of the Attorney General (AGO). During its
investigation of Ameriquest's lending practices, the AGO obtained a number
Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
of e-mail messages from Ameriquest that Ameriquest employees had created
while processing consumer loans. The AGO wants to disclose redacted
versions of a subset of these e-mails to Melissa A. Huelsman, an attorney
who has requested the records in accordance with the Public Records Act
(PRA), chapter 42.56 RCW. Ameriquest claims that we decided in
Ameriquest Mortgage Co. v. Washington State Office of Attorney General,
170 Wn.2d 418, 241 P.3d 1245 (2010), that the Gramm-Leach-Bliley Act of
1999 (GLBA), 15 U.S.C. §§ 6801-6809, and its accompanying regulations,
prohibit the disclosure of any e-mails containing nonpublic personal
information, even after redaction. Ameriquest also claims that the e-mails
are shielded by the PRA's investigative records exemption, RCW 42.56.240,
and the Consumer Protection Act (CPA), chapter 19.86 RCW, which shields
materials produced in response to a civil investigative demand (CID).
Additionally, Ameriquest claims it should be afforded the opportunity to
conduct discovery into why the AGO is not invoking the investigative
records exemption.
The trial court held that the GLBA did not prevent disclosure, that the
PRA exemption and CPA shield were inapplicable, and that Ameriquest
does not get discovery. We reverse the trial court in part, holding that the
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GLBA prevents the AGO from newly redacting and disclosing those e-mails
that contain nonpublic personal information, even when the redaction
process removes all of the nonpublic personal information. We affirm the
trial court's holding that the PRA investigative records exemption and the
CPA's shield do not apply and that Ameriquest does not get discovery.
FACTS AND PROCEDURAL HISTORY
In 2003, the AGO began its investigation under the CPA into
Ameriquest's lending practices. In early 2004, the AGO joined together
with attorneys general and financial regulators from a handful of other states
in its investigation, which eventually expanded to include 49 states and the
District of Columbia (Multi state).
In May 2004, Minnesota Assistant Attorney General Prentiss Cox, on
behalf of the Multistate, sent a letter to Ameriquest seeking information
regarding Ameriquest's operations. Attached to this letter, Cox sent
interrogatories and document requests. Cox wrote that the Multistate was
sending this letter "in lieu" of a formal CID in anticipation of Ameriquest' s
voluntary cooperation. Clerk's Papers (CP) at 178. Cox further stated that if
Ameriquest preferred a formal CID, Multistate would reissue its demand
"under . . . [its] formal investigative authority." Id. The letter gave
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Ameriques! Mortg. Co. v. Office of the Attorney General, No. 87661-4
Ameriquest 30 days to respond and identified a contact person in each state
to whom Ameriquest was to produce the requested information. In response,
Ameriquest produced roughly 314,000 employee e-mails and 181,000 e-mail
attachments. 1 The e-mails vary in form and content but as a whole contain
information about Ameriquest's customers.
In March 2006, the parties reached a settlement and entered a consent
decree in King County Superior Court. Ameriquest, 170 Wn.2d at 427. The
decree contained a provision relating to the PRA: '"If the State receives a
request for documents provided by an Ameriquest Party ... , the State shall
comply with applicable public disclosure laws and promptly provide notice
to the Ameriquest Parties .... "' Id. (alteration in original) (quoting clerk's
papers).
In February 2007, Huelsman filed a PRA request for "'[a]ll records
relating to [the] investigation of Ameriquest."' Id. (alterations in original).
In discussion with the AGO, Huelsman agreed to narrow her initial request
with the expectation that she would seek and receive additional information.
The AGO notified Ameriquest of its intention to produce the documents.
1
This is in addition to loan files and other forms of documentation.
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After receiving notice, Ameriquest sought to enjoin disclosure and
Huelsman joined the suit as an intervenor. The trial court denied the motion,
concluding that the federal GLBA did not preempt the PRA and ordered the
AGO to redact exempt personal and confidential information from the
records before releasing them. The Court of Appeals reversed the trial court,
holding that the GLBA did preempt the PRA and prohibited disclosure.
Ameriquest Mortg. Co. v. State Att'y Gen., 148 Wn. App. 145, 159, 199 P.3d
468 (2009), ajf'd on other grounds, 170 Wn.2d 418 (2010). We granted the
AGO's petition for review only on the issue of whether the GLBA
preempted or precluded the AGO's proposed disclosure. Ameriquest, 170
Wn.2d at 428-29.
We held that the GLBA and its accompanying regulations applied to
the AGO's proposed disclosure of nonpublic personal information to
Huelsman and do not preempt the PRA because they fall within the PRA's
"other statute" exemption. Id. at 440. We remanded the case to the trial
court with the instruction that the trial court apply the GLBA, as we had
interpreted it, to determine what records the AGO could disclose. !d. at 441.
On remand, the AGO notified Ameriquest that it would still be
disclosing a redacted version of a small subset of the documents. This
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661~4
subset consists of 49 pages of e~mail messages, created by Ameriquest
employees processing consumer loans, specifically relating to income
falsification and the Blackstone Title Company (E-mails). Ameriquest
objected and moved that the disclosure be prohibited on the grounds that
(1) the GLBA prohibits disclosure of the aggregated2 and redacted E-mails,
(2) the E-mails are covered by the PRA's investigative record exemption,
and (3) the CPA shields the E-mails from disclosure because Ameriquest
produced them in response to aCID. Ameriquest also argued it was entitled
to discovery to probe the AGO's rationale behind its decision not to assert
the PRA's investigative records exemption.
After reviewing the E-mails in camera, with the proposed redactions
highlighted for its review, the trial court ordered the AGO to produce the
E-mails. The trial court held that the GLBA did not prohibit redaction or
disclosure in this case, that Ameriquest did not produce the E-mails in
response to a CID, and that the PRA's investigative record exemption did
not apply because there was "no law enforcement or investigative function
to be protected" by prohibiting disclosure. CP at 378. The trial court stayed
2
The AGO produced the E~mails in an aggregated format, apparently due to the fact that
Ameriquest gave them to the AGO in an electronic format compatible with the AGO's
Concordance litigation management software, and the printout the Concordance database
generates is an aggregation.
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its order for 60 days to allow Ameriquest the opportunity to obtain a stay
from the Court of Appeals. The Court of Appeals issued its stay and the
parties stipulated to filing theE-mails with the Court of Appeals under seal.
In July 2012, the Court of Appeals certified the case to us pursuant to
RAP 4.4 and RCW 2.06.030. We accepted the certification. Ruling
Accepting Certification, Ameriquest Mortg. Co. v. Office of Att 'y Gen.,
No. 87661-4 (July 26, 2012).
ISSUES
(1) Whether the GLBA prevents the AGO from redacting the
nonpublic personal information in the E-mails that the
Ameriquest employees created while processing loans
and then producing them for public disclosure pursuant
to a PRA request.
(2) Whether Ameriquest can enjoin disclosure because the
E-mails are covered by the PRA's investigative records
exemption and Ameriquest has shown that either it or a
vital government function would be substantially and
irreparably harmed by disclosure.
(3) Whether Ameriquest is entitled to discovery to probe the
rationale behind the AGO's decision not to invoke the
PRA's investigative records exemption.
(4) Whether Ameriquest's voluntary production of materials
in response to the Multistate's letter should be deemed a
response to a CID, thereby exempting the E-mails from
disclosure.
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STANDARD OF REVIEW
The application of a statute to a fact pattern is a question of law fully
reviewable on appeal. Lobdell v. Sugar 'N Spice, Inc., 33 Wn. App. 881,
887, 658 P.2d 1267 (1983). The interpretation of case law is reviewed de
novo. State v. Willis, 151 Wn.2d 255, 261, 87 P.3d 1164 (2004). Agency
action taken or challenged under the PRA is reviewed de novo. RCW
42.56.550(3). Appellate courts stand in the shoes of the trial court when
reviewing declarations, memoranda of law, and other documentary evidence.
See Spokane Police Guild v. Wash. State Liquor Control Bd., 112 Wn.2d 30,
35-36, 769 P.2d 283 (1989).
Trial court discovery rulings are subject to revtew for abuse of
discretion. In re Det. ofHalgren, 156 Wn.2d 795, 802, 132 P.3d 714 (2006).
A trial court abuses its discretion if its decision is manifestly unreasonable or
based on untenable grounds or untenable reasons. In re Marriage of
Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
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ANALYSIS
A. The GLBA Prevents the AGO from Redacting and Producing the
E-mails
1. Brief Overview of the GLBA
The policy of Congress is that "each financial institution has an
affirmative and continuing obligation to respect the privacy of its customers
and to protect the security and confidentiality of those customers' nonpublic
personal information." 15 U.S.C. § 6801(a). To give effect to this policy,
the GLBA prohibits a "financial institution" from "disclos[ing] to a
nonaffiliated third party any nonpublic personal information, unless such
financial institution provides or has provided to the consumer a notice" and
the opportunity to opt out of the disclosure. 15 U.S.C. § 6802(a); 16 C.P.R.
§ 313.10(a)(1). 3 A "nonaffiliated third party" is "any entity that is not an
affiliate of, or related by common ownership or affiliated by corporate
control with, the financial institution." 15 U.S.C. § 6809(5).
3
Pursuant to the rule making authority it possessed at the time, the Federal Trade
Commission (FTC) adopted Privacy of Consumer Financial Information, 16 C.P.R. §
313, providing additional direction. The Dodd-Frank Wall Street Reform and Consumer
Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (July 21, 2010), which included
amendments to the GLBA, gave the FTC's rule making authority in this area to the newly
created Bureau of Consumer Financial Protection. See Dodd-Frank Act § 1093, 124 Stat.
at 2095-96. The relevant regulations in 16 C.P.R. § 313, however, are unchanged and
remain in force.
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Several exceptions apply to this prohibition, including one that allows
disclosure "to comply with Federal, State, or local laws, rules, and other
applicable requirements" or "to comply with a properly authorized, civil,
criminal, or regulatory investigation." 15 U.S.C. § 6802(e)(8); 16 C.F.R.
§ 313 .15(a)(7)(i)-(ii). When a financial institution lawfully discloses
nonpublic personal information to a nonaffiliated third party pursuant to an
exception, the GLBA imposes limits on the nonaffiliated third party's use or
redisclosure of the information. The receiving third party may not reuse or
redisclose the nonpublic personal information to another nonaffiliated third
party unless it would be lawful for the financial institution to reuse or
redisclose the information in that manner. 15 U.S.C. § 6802(c); 16 C.F.R.
§ 313.1l(c)-(d).
In Ameriquest, the parties to the present case agreed that Ameriquest
"is a 'financial institution' and that the AGO received 'nonpublic personal
information' from Ameriquest." 170 Wn.2d at 429. We determined that
Ameriquest was authorized to disclose the information to the AGO, a
nonaffiliated third party, through the GLBA's exception for authorized
investigations. Id.; see also 15 U.S.C. § 6802(e)(8); 16 C.F.R. §
313.15(a)(7)(ii). We also decided that the AGO and Huelsman were not
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affiliates, so the AGO could not freely share with Huelsman any GLBA-
protected information it had received from Ameriquest unless other grounds
existed for doing so. Ameriquest, 170 Wn.2d at 430.
In the present case, the parties remain in the same GLBA-defined
positions. Ameriquest is still a financial institution that gave records (the
E-mails) containing at least some nonpublic personal information to the
AGO, a nonaffiliated third party, and since neither the AGO nor Huelsman
have become companies, they remain unaffiliated. Consequently, it is
necessary to proceed through the remainder of the GLBA framework as
detailed in our Ameriquest decision.
2. Defining Nonpublic Personal Information
The regulations define nonpublic personal information as
(1) "[p]ersonally identifiable financial information" (PIFI) or (2) "[a]ny list,
description, or other grouping of consumers (and publicly available
information pertaining to them) that is derived using any personally
identifiable information that is [(3)] not publicly available." 16 C.P.R.
§ 313 .3(n)(1 )(i)-(ii). In Ameriquest, we stated that it is through these three
definitional filters that information must pass before it can be properly
classified as GLBA protected. 170 Wn.2d at 431.
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We explained that the first filter, PIPI, is any information given in the
context of the provision of a financial product or service (1) that a consumer
gives to a financial institution, (2) about a consumer resulting from any
transaction involving a financial product or service, or (3) that a financial
institution obtains about a consumer. Id. (citing 16 C.P.R.§ 313.3(o)(l)).
"' [I]nformation that does not identify a consumer, such as aggregate
information or blind data that does not contain personal identifiers such as
account numbers, names, or addresses"' is not PIPI. Id. (quoting 16 C.P.R.
§ 313.3(o)(l), (2)(ii)(B)). We held that consumer names, addresses, and
phone numbers in the Ameriquest case were PIPI due to the fact that they
were personal identifiers and revealed that the individual was an Ameriquest
customer. Id. at 431-32. Importantly, we noted that information is defined
as PIPI based on its nature and not on the vessel in which it is carried. Id. at
432. In other words, it does not matter if the information is contained in
loan files, e-mails, or in the AGO's internal work product; if it is PIPI, it is
PIPI. Id.
As for the second filter, we stated that if the information included in
lists, descriptions, or other groupings of consumers was "'derived using any
nonpublic personal information,"' then it is "automatically protected." I d. at
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435 (quoting 15 U.S.C. § 6809(4)(C)(i) and citing 16 C.F.R. §
313 .3(n)(1 )(ii)). "Even if some publicly available information is included in
such a grouping, all of the information in the list or grouping is deemed
nonpublic personal information." ld. (citing 15 U.S.C. § 6809(4)(C); 16
C.F.R. § 313.3(n)(2)(i)). We held that any list, description, or other
grouping the AGO proposed to produce must be nonpublic personal
information because the AGO "necessarily must [have] derive[ d] the
grouping using . . . [PIFI], such as the fact that the consumer is or was an
Ameriquest customer." Id.We defined the third filter, publicly available information, as that
which the financial institution has "a reasonable basis to believe" is publicly
available through other sources like government records or the media. ld. at
432-34 (emphasis omitted). We held that nonaffiliated third parties, like the
AGO, are prohibited by the GLBA from recasting nonpublic personal
information as exempt publicly available information. Id. at 434. We
reasoned that consumers have consented in giving their information to
financial institutions, but not to nonaffiliated third parties. ld. Therefore,
allowing nonaffiliated third parties to "rummage through the consumer's
information" to determine if it is public "would conflict with the carefully
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drawn [GLBA] limits on a third party's use and redisclosure of the protected
information." Id. We concluded that any information provided by
Ameriquest that meets this definition of publicly available information is not
nonpublic personal information, "even if the information would otherwise
meet the definition of [PIFI]." Id. at 432 (citing 15 U.S.C. § 6809(4)(A); 16
C.F.R. § 313.3(n)(l), (2), (o)(l)).
In the present case, the vast majority of the E-mails contain PIFI. The
E-mails that contain PIFI carry an assortment of consumer names and loan
numbers, as well as an occasional consumer phone number, e-mail address,
or name of a consumer's employer. As we acknowledged in Ameriquest, the
fact that the PIFI is located in an e-mail "vessel" does not change its PIFI
nature. 170 Wn.2d at 432.
As for the second filter, the AGO does not appear to be proposing to
release any list, description, or other grouping of consumers. In regards to
the third, nowhere has Ameriquest determined that the information in
question is publicly available. 4
4
The AGO and Huelsman nowhere argue that Ameriquest has made this determination.
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3. Redaction and Reuse
A nonaffiliated third party may "'disclose and use"' nonpublic
personal information only "'in the ordinary course of business to carry out
the activity covered by the exception under which [it] received the
information."' Id. at 435 (alteration in original) (quoting 16 C.F.R.
§ 313.1l(c)(3)). This is because "'consumers have a privacy interest in the
initial use of their nonpublic personal information for the creation of
aggregate data."' I d. (quoting Individual Reference Servs. Grp., Inc. v. FTC,
145 F. Supp. 2d 6, 38 (D.D.C. 2001), aff'd sub nom. Trans Union LLC v.
FTC, 353 U.S. App. D.C. 42, 295 F.3d 42 (2002)).
Consequently, in Ameriquest we held that smce the AGO had
obtained the nonpublic personal information under the GLBA exception for
government investigations, it was not permitted to "use" any of it for the
purposes of public disclosure. 170 Wn.2d at 436. "Public disclosures," we
said, "are not an ordinary part of an investigation." I d. We further held that
'"use' includes redactions and repackaging of information because the AGO
is required to leave the information-and the consumer's privacy-
undisturbed unless the AGO needs to use it in the ordinary course of ... [its]
investigation." Id. We emphasized that if Ameriquest produced any records
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to the AGO that did not contain nonpublic personal information, the AGO
could disclose those records "because no additional use of protected
information [would be] necessary" to disclose them. I d.
We gave the example of a "memorandum analyzing the interest rates
given to certain income groups, with no names or addresses included." ld.
The information in such a memorandum would not be nonpublic personal
information because it would not include personal identifiers nor reveal that
any individual was an Ameriquest customer, so it would not contain PIFI,
nor, as Ameriquest's creation, would it be the product of the AGO's use of
PIFI. See id. at 432.
Here, the AGO stands in the same position in which it stood in our
Ameriquest decision. The AGO is a nonaffiliated third party that received
theE-mails and the nonpublic information they contain through the GLBA's
exception for investigations. Accordingly, the AGO is not permitted to
"use" the nonpublic personal information for something besides its
investigation. In Ameriquest, we held quite clearly that the definition of
"use" includes redaction. 5 170 Wn.2d at 436. Therefore, simply by
5
The AGO points to paragraph 3 8 of the Ameriquest decision in an attempt to argue that
redaction in the manner proposed is permitted. That paragraph states:
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redacting the personal identifiers in the E-mails, the AGO has "used" the
information, regardless of what is left behind in the messages. Moreover,
public disclosure of the nonpublic personal information in question would
presumably not be in the ordinary course of the AGO's long-closed
investigation. Consequently, the AGO is not permitted under the GLBA to
release the E-mails it received from Ameriquest as part of its investigation
when they contain nonpublic personal information, even with its proposed
As we have discussed, however, the GLBA and the FTC prohibit
specific information, not entire records. These federal regulations are
unconcerned with the containers in which the information is found. Thus,
to the extent that a record contains unprotected information, the disclosure
of which would not violate the GLBA or the FTC rule, the PRA is not
preempted in requiring the record's disclosure.
170 Wn.2d at 440. Taken out of context, the paragraph is sm11ewhat confusing and
appears to contradict our clear declaration that redaction constitutes impermissible "use."
See id. at 436. This paragraph immediately follows a discussion of how the PRA requires
redaction where possible but leaves room, through its "other statute" exemption, for other
statutes like the GLBA to prohibit redaction. In context, it is clear that the paragraphs
mean as follows:
As we have discussed, however, the GLBA and the FTC rules only control the disclosure
of "nonpublic personal information," not a specific category or class of records like
"records from financial institutions" or "loan processing documents." This is made clear
by the fact that the GLBA and FTC rules apply regardless of where "nonpublic personal
information" is found. So, if there is a record that does not contain "nonpublic personal
information," even if that record is from a financial institution or involves the processing
of loans, the GLBA and FTC rules will not apply and certainly will not trump the PRA's
requirement that the record be disclosed.
Consequently, this paragraph does not stand for the proposition that redaction as the
AGO proposes is permissible.
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redactions. 6 To allow otherwise would violate '"consumers['] ... privacy
interest in the initial use of their nonpublic personal information .... "' I d.
at 435 (quoting Individual Reference Servs. Grp., Inc., 145 F. Supp. 2d at
38).7,8
6
Accordingly, the AGO's argument that it is not right to protect a whole chain of
connected e-mails because one contains nonpublic personal information also fails. It is
understood that each e-mail is an individual message, but when they are linked together
in one e-mail as a chain and were produced as one unit to the AGO they cannot be
separated out and disclosed individually as that would constitute redaction or
repackaging. Along those same lines, Ameriquest also argues that because the AGO
produced the E-mails to the court as a Concordance printout, it engaged in improper
aggregation in violation of the "use" restrictions because that is not exactly how
Ameriquest produced theE-mails to the AGO. The AGO claims that theE-mails were in
fact produced to the AGO in that way in the sense that they were on DVDs (digital video
disks) that were formatted specifically for Concordance. The AGO, however, claims that
it has all of the E-mails in their original format and can still produce them in that manner,
so this is a moot point. Verbatim Report of the Proceedings (Aug. 12, 2011) at 14.
7
The AGO argues that if this court prohibits redaction and disclosure of these E-mails it
will "extend a shroud of secrecy" over corporate conduct. Br. of Resp't at 13. What the
AGO ignores is the fact that GLBA did not prevent it and other regulatory agencies from
obtaining the documents for investigative purposes and that the GLBA would not prevent
Huelsman from obtaining the documents through discovery in a lawsuit. See 15 U.S.C.
§ 6802(e)(8). Moreover, if the AGO had obtained the records like it typically does in
such investigations, through aCID, then public disclosure under the PRA would not even
be an option. See CP at 302-05; RCW 19.86.110(7).
8
The AGO's additional argument that a state regulatory agency would be able to insulate
records from public disclosure by "inserting nonpublic personal information about
financial institution consumers" into the records is similarly unpersuasive. Br. of Resp't
at 18. The GLBA and FTC regulations prohibit nonaffiliated third party recipients of
nonpublic personal information, like state regulatory agencies, from using such
information outside the context of the "ordinary course ofbusiness" ofthe exception that
allowed it to receive the information. 16 C.P.R. § 313.1l(c)(3). To the extent the state
agencies were inserting nonpublic personal information into random documents to
insulate them from public disclosure, they would be violating the GLBA. To the extent
they were inserting them into internal work product related to the business of the
exception, like memoranda relating to an investigation, they would not be violating the
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The fact that we hold the AGO may not redact and disclose the E-
mails containing even one piece of GLBA-protected information does not
eliminate the need to examine the PRA and the CPA issues that follow. To
the extent there are E-mails that do not contain any GLBA-protected
information, they may be released unless the PRA exemption or CPA shield
apply.
B. TheE-mails Are Not Exempt from Disclosure under the Investigative
Records Exemption of the PRA, so Ameriquest Cannot Meet Its
Burden
1. Brief Overview of the PRA
The PRA requires state and local agencies to "make available for
public inspection and copying all public records, unless the record falls
within the specific exemptions of [the PRA] or other statute which exempts
or prohibits disclosure of specific information or records." RCW
42.56.070(1). The PRA defines "public record" broadly to include "any
writing containing information relating to the conduct of government or [a
governmental function]" that is "prepared, owned, used, or retained by any
GLBA, nor would they be allowed to disclose those memoranda. That is perfectly in line
with our Ameriquest decision. Otherwise, the AGO could have just taken all of the
information from the loan files that was nonpublic personal information and repackaged
it in memoranda or charts without the personal identifiers to create blind data that then
could be treated as public information. See 16 C.F.R § 313.3(o)(2)(ii)(B). This is
something we expressly prohibited it from doing. Ameriquest, 170 Wn.2d at 435-36.
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Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
state or local agency." RCW 42.56.010(3). The PRA is to be "liberally
construed and its exemptions narrowly construed . . . to assure that the
public interest will be fully protected." RCW 42.56.030.
The PRA requires agencies to facilitate the full disclosure of public
records to interested parties through published methods and rules of
disclosure. RCW 42.56.040(1). If an agency withholds requested public
records it must justify its actions. RCW 42.56.070(1), .210(3), .520. Any
challenges to agency action involving the PRA are subject to de novo review
and a successful challenger is awarded costs and fees and, at the discretion
of the court, a statutory penalty. RCW 42.56.550.
2. The PRA Exemptions
As indicated above, the PRA contains exemptions that protect certain
9
information or records from disclosure. See RCW 42.56.070, .230-.480,
.600-.610. The exemptions are intended to "exempt from public inspection
those categories of public records most capable of causing substantial
damage to the privacy rights of citizens or damage to vital functions of
government." Limstrom v. Ladenburg, 136 Wn.2d 595, 607, 963 P.2d 869(1998). The burden of proof is on the party seeking to prevent disclosure to
9
Including the "other statute" exemption that enables the GLBA's protections to control
where applicable. Ameriquest, 170 Wn.2d at 439-40; see also RCW 42.56.070(1).
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661-4
show that an exemption applies. Id. at 612; RCW 42.56.540, .550(1); see
also Ames v. City of Fircrest, 71 Wn. App. 284, 296, 857 P.2d 1083 (1993).
Thus, if an agency is claiming an exemption, the agency bears the burden of
proving it applies. RCW 42.56.550(1). If it is another party, besides an
agency, that is seeking to prevent disclosure, then that party must seek an
injunction. RCW 42.56.540. In such a case, the party must prove (1) that
the record in question specifically pertains to that party, (2) that an
exemption applies, and (3) that the disclosure would not be in the public
interest and would substantially and irreparably harm that party or a vital
government function. !d.; see Soter v. Cowles Pub! 'g Co., 162 Wn.2d 716,
757, 174 P.3d 60 (2007); see also Seattle Times Co. v. Serko, 170 Wn.2d
581, 591, 243 P.3d 919 (2010).
Courts should construe exemptions narrowly to allow the PRA's
purpose of open government to prevail where possible. RCW 42.56.030. If
there is information in a public record that is exempt and redaction and
disclosure is possible, then it is required. See Progressive Animal Welfare
Soc'y v. Univ. of Wash., 125 Wn.2d 243,261, 884 P.2d 592 (1994) (PAWS)
("Portions of records which do not come under a specific exemption must be
disclosed."). A court may even allow for the inspection and copying of
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661-4
exempt records if it finds "that the exemption of such records is clearly
unnecessary to protect any individual's right of privacy or any vital
government function." RCW 42.56.210(2); Oliver v. Harborview Med. Ctr.,
94 Wn.2d 559, 567-68, 618 P.2d 76 (1980) (burden shifts to the party
seeking disclosure to establish that the exemption is clearly unnecessary).
3. Investigative Records Exemption
The PRA has an exemption for investigative, law enforcement, and
crime victim information. RCW 42.56.240. The exemption prohibits the
inspection and copying of specific intelligence information and investigative
records "compiled by investigative [and] law enforcement ... agencies ... ,
the nondisclosure of which is essential to effective law enforcement or for
the protection of any person's right to privacy." RCW 42.56.240(1). This
exemption is not limited in application to only when law enforcement would
cease to function were the documents in question disclosed. Koenig v.
Thurston County, 175 Wn.2d 837, 861, 287 P.3d 523 (2012) (J.M. Johnson,
J., dissenting). The legislature's inclusion of the word "effective" allows for
a broader application. 10 !d.
10
Ameriquest argues that whether the investigative records exemption applies in this
context is a matter of first impression because all previous cases have dealt with
prosecutor or police records and confidential informants, so it is necessary to turn to
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Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
Deciding whether nondisclosure is essential to effective law
enforcement is a question of fact. See Ames, 71 Wn. App. at 295 (citing
Cowles Publ'g Co. v. State Patrol, 109 Wn.2d 712, 715-18, 729-30, 748
P.2d 597 (1988)). When making this factual determination, courts will
consider the testimony, declarations, and affidavits of those with knowledge
of and responsibility for investigations of that nature. Newman v. King
County, 133 Wn.2d 565, 573-75, 947 P.2d 712 (1997); see also Cowles
Publ 'g Co., 109 Wn.2d at 730-31; Koenig, 175 Wn.2d at 862 (J.M. Johnson,
J., dissenting). Appellate courts review a trial court's decision that relies
exclusively on affidavits, declarations, and other documents in making its
determination de novo. Bainbridge Island Police Guild v. City of Puyallup,
172 Wn.2d 398, 407, 259 P.3d 190 (2011) (citing PAWS, 125 Wn.2d at 252-
53).
For example, in Newman a freelance journalist submitted a public
records request in 1994 for the files of the ongoing investigation into the
1969 murder of civil rights leader Edwin Pratt. 133 Wn.2d at 568-69. The
King County Department of Public Safety denied most of the request. Id.
The trial court held that the investigation file could not have a blanket
external authorities for guidance. We disagree. It is possible to resolve this issue using
our preexisting authorities.
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Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
exemption from disclosure. Id. at 569-70. We granted the county's request
for discretionary review. Id. at 570.
Acknowledging the inherent clash between Washington's former
public disclosure act's (former chapter 42.17 RCW) preference for open
government and the law enforcement exemption's seemingly broad
language, we held this active file exempt in its entirety. 11 Id. at 573-75. We
recognized that "a court can make a determination about what constitutes an
open file or unsolved case and 'effective law enforcement,' as required by
the exemption, by applying certain standards to proof offered by the agency
about the status of the investigation, without reviewing the documents in the
file itself." Limstrom, 136 Wn.2d at 613 (quoting Newman, 133 Wn.2d at
573). Examining the declarations of law enforcement personnel involved, it
was apparent to us that "[t]he ongoing nature of the investigation naturally
provides no basis to decide what is important." Newman, 133 Wn.2d at 574.
We reversed the trial court, finding that "[t]he determination of sensitive or
nonsensitive documents often cannot be made until the case has been
solved." Id. We held that the exemption, therefore, "allows the law
11
Specifically, we looked to affidavits of those with direct knowledge ofthe investigation
to determine whether resources were allocated to the investigation and whether
enforcement proceedings were contemplated. Newman, 133 Wn.2d at 573.
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661-4
enforcement agency, not the courts, to determine what information, if any, is
essential to solve a case." Id.In Cowles, journalists sought access to the names of police officers
against whom complaints had been sustained after the completion of internal
investigations. 109 Wn.2d at 713. The relevant agencies consented to
providing copies in which they had removed the names of the officers
involved and the complaining parties and witnesses. Id. at 714. The
newspapers sought unedited versions of the records. Id. at 715. A
psychologist gave testimony on behalf of the agencies that if they had to
disclose names, officers would adopt a "'code of silence"' and instances of
misconduct would go unreported. Id. at 716.
Relying on this "'code of silence'" testimony, the plurality agreed
with the trial court, finding that nondisclosure was essential to law
enforcement. I d. at 729. It reasoned that releasing the unedited versions
would subject those involved to potential public harassment, embarrassment,
and even violence. Id. at 730-31. Given that the agencies relied primarily
on voluntary cooperation and on infonnation from informants in these
investigations, it concluded th3;t disclosure would seriously hinder future law
enforcement efforts. Id. at 732-33. Two justices concurred only in the result
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Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
on the basis that they thought they could not substitute their judgment for
that of the trial court in resolving this factual issue. Jd. at 733-34 (Andersen,
J., concurring in the result).
In the present case, Ameriquest argues that the investigative records
exemption applies and prevents disclosure. The parties agree that the
E-mails are investigative records that have been compiled by a law
enforcement agency. The parties' dispute instead centers on whether
nondisclosure is essential to effective law enforcement. 12 As the party
seeking nondisclosure, Ameriquest has the burden of proof. See RCW
42.56.540.
In response to Ameriquest's contention that the investigative records
exemption applies, the AGO submitted the declaration of Douglas D. Walsh,
the division chief of the consumer protection division. CP at 302. Walsh
stated that in pursuing CPA cases the AGO "primarily relies on evidence"
obtained through CIDs and not through voluntary production. 13 Id. at 303
12
Ameriquest also contends that the privacy prong of the investigative records exemption
is met as to theE-mails containing GLBA-protected information. Because Ameriquest's
argument hinges on whether the GLBA applies to prohibit disclosure it will not be
discussed again here. See supra part A.
13
Walsh has been negotiating CPA settlements on behalf of the AGO as an assistant
attorney general for 20 years and has served as the division chief since 2006. CP at 302,
304.
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661-4
(Decl. Walsh ~ 5). Walsh declared that, consequently, public disclosure of
the information Ameriquest voluntarily produced will not negatively impact
the AGO's CPA enforcement activity. Id. Walsh also stated that he
personally reviewed the E-mails and was unable to locate any information
that must be kept confidential as essential to effective law enforcement. Id.
(Decl. Walsh ~ 6). Specifically, Walsh affirmed that the E-mails do not
contain the identity of a confidential informant and do not divulge the
AGO's investigative strategies or practices. Id. at 303-04 (Decl. Walsh`` 7,
8).
Moreover, Walsh stated that disclosing the E-mails would not
discourage other defendants from entering into settlement negotiations with
the AGO. Id. at 304 (Decl. Walsh~ 10). Walsh said that this is because
settlement is the only means by which a target can control litigation risk. Id.
at 304 (Decl. Walsh~ 11). "A final judgment or decree in any [CPA] action
brought by the AGO is prima facie evidence against the defendant in any
private [CPA] action ... unless the judgment is a consent judgment or
decree." Id. (emphasis omitted) (citing RCW 19.86.130). If a private
plaintiff prevails in a CPA action, the trial court may award damages,
including treble damages up to $25,000 per consumer. Id. (citing RCW
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Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
19.86.090). Also, settlements avoid the risk that a court will impose severe
injunctions against certain business practices or higher civil penalties. Id.
(Decl. Walsh ~ 12). A fear that documents will be disclosed will not
eliminate these incentives. See id. (Decl. Walsh.~ 10).
Additionally, Walsh declared that targets are interested in maintaining
the confidentiality of the information they provide and that is why the AGO
issues CIDs pursuant to RCW 19.86.110. Id. at 305 (Decl. Walsh~ 14).
CID responses are exempt from public disclosure. I d. (citing RCW
19.86.110(7)). Walsh further stated that assistant attorneys general are
instructed not to promise confidentiality unless a specific exemption applies,
and that defendants typically do not expect that documents will be
categorically exempt from public disclosure. Id. (Decl. Walsh ~ 16). Walsh
concluded his declaration by noting that the most sensitive documents, the
settlement correspondence and materials, 14 are subject to public disclosure
and the fact that they can be disclosed still does not chill cooperation or
settlement. ld. at (Decl. Walsh ~ 17). The trial court considered Walsh's
14
The settlement documents are the most sensitive because they provide a litigation road
map for private plaintiffs. CP at 305 (Decl. Walsh~ 17).
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declaration as well as the declaration of Diane Tiberend 15 for Ameriquest
when determining that nondisclosure was not essential to effective law
enforcement. CP at 392-93.
Given this evidence, and acknowledging that the trial court relied
exclusively on declarations, we affirm the trial court's finding that the
investigative records exemption does not apply. Unlike Newman, this is not
an ongoing investigation, so at the very least a blanket application of the
exemption is inappropriate. See Newman, 133 Wn.2d at 569, 574-75.
Unlike Cowles, Ameriquest has not provided any truly persuasive reason as
to why disclosure would harm the AGO's future law enforcement efforts.
See Cowles, 109 Wn.2d at 728-33. Ameriquest attempts to provide a reason
by making a broad policy argument, supported with federal authorities, that
there is the possibility that disclosure will dissuade future targets from
cooperating with the AGO. It is unclear, however, why the disclosure of
these particular e-mails will harm Ameriquest. TheE-mails do not contain
15
This declaration speaks broadly about all of the e-mails that Ameriquest produced,
instead of specifically speaking about the subset we are dealing with here, and the type of
GLBA and other trade secret and proprietary information they allegedly contain. CP at
284 (Decl. Tiberend `` 4, 5).
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661-4
proprietary or trade secret information. 16 It is also unclear why disclosure,
even if it would harm Ameriquest, would destroy the incentives for
settlement that Walsh identified. Furthermore, any concern future parties
may have that the documents they provide will be disclosed can easily be
allayed by their requesting aCID, which the AGO is willing to provide. See
CP at 178. In fact, that is apparently what happens most of the time.
Ameriquest has failed to meet its burden.
Ameriquest has failed to demonstrate how an exemption applies or
how it or a vital government function would be substantially and irreparably
damaged. See RCW 42.56.540. Moreover, Ameriquest has produced no
authority or evidence to prove that the public lacks a legitimate interest in
monitoring agency investigations. ld. There is case law directly to the
contrary. See Bainbridge, 170 Wn.2d at 416 (the public has a legitimate
interest to know how a law enforcement agency conducts investigations).
16
If the E-mails did contain such information, Ameriquest could argue that the PRA
exemption for financial, commercial, and proprietary information applies. See RCW
42.56.270. Ameriquest could also argue that the Uniform Trade Secrets Act, chapter
19.108 RCW, applies.
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C. Ameriquest Is Not Entitled to Discovery To Probe the AGO's
Decision To Not Invoke the Investigative Records Exemption
The trial court deemed Walsh's declaration sufficient to conclude that
the PRA investigative records exemption does not apply, so it effectively
denied Ameriquest's discovery motion. CP at 393. Ameriquest claims that
Walsh's declaration is too conclusory. Ameriquest attempts to bolster this
argument by claiming that the AGO treated two other similarly situated
targets, Countrywide and Wells Fargo, differently in the past. Ameriquest
argues this helps prove nondisclosure is essential to effective law
enforcement. The AGO counters that Walsh's declaration contained
sufficient detail and that both of those agreements 17 contained provisions
similar to the one provided to Ameriquest, 18 providing that the information
will be kept confidential except as required by law. The AGO further argues
17
The Wells Fargo agreement states that the AGO "shall not disclose or use any
confidential information without the prior written consent of the disclosing party, except
to the extent required by law, regulation or court order (and in any of these
circumstances, only upon prior written notice to Wells Fargo)." CP at 359. The
Countrywide agreement states that the AGO "shall not disclose or use any confidential
information without the prior written consent of the disclosing party, except to the extent
required by law, regulation or court order (and in such case, only upon prior written
notice to the disclosing party)." CP at 364.
18
The decree entered into with Ameriquest states in regard to the PRA that "' [i]f the
State receives a request for documents provided by an Ameriquest Party . . . , the State
shall comply with applicable public disclosure laws and promptly provide notice to the
Ameriquest Parties .... " Ameriquest, 170 Wn.2d at 427 (first alteration in original).
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that it necessarily is limited by what the law enables it to do with regards to
confidentiality. In other words, even if it had promised Ameriquest or
anyone else absolute confidentiality, the AGO could not override the PRA
with its promises.
We affirm the trial court's ruling that Ameriquest is not entitled to
discovery. Walsh's declaration is detailed enough in its description of the
AGO's investigative procedures and the incentives affecting targets'
willingness to cooperate and settle. Moreover, the agreements offered to
Ameriquest, Wells Fargo, and Countrywide appear similar enough in that
they each acknowledge the AGO's obligations under laws like the PRA.
The trial court likely did not abuse its discretion when it denied Ameriquest
discovery.
D. Ameriquest's Production of the E-mails Was Not in Response to a
CID, so the E-mails Are Not Protected from Disclosure under the
CPA
The Washington CPA authorizes the AGO, prior to the initiation of a
civil proceeding, to issue aCID. RCW 19.86.110(1); see Steele v. State, 85
Wn.2d 585, 595, 537 P.2d 782 (1975) (finding that the AGO has some
latitude in embarking upon investigations without absolute assurances that
the CPA has been violated). A CID requires the person upon whom it is
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served to produce the requested documentary material, answer written
interrogatories, give oral testimony, or any combination of such demands.
RCW 19.86.110(1). Each CID has to be in writing and (1) state the statute
and section or sections the alleged violation of which is under investigation
and state the general subject matter of the investigation, and (2) if it asks for
documentation, describe it with reasonable specificity, (3) prescribe a return
date, and (4) identify someone on the AGO's staff to whom the material
should be produced. RCW 19.86.110(2). If the recipient refuses to respond
to the CID, then the AGO can bring an action in superior court to enforce it
and the court can award sanctions for the recipient's failure to comply.
RCW 19.86.110(9). Any documents, answers, or testimony produced in
response to a CID cannot be publicly disclosed without the producing
party's consent. 19 RCW 19.86.110(7). The CPA is an "other statute" under
the PRA that can exempt public records from disclosure. See RCW
42.56.070(1 ).
19
"No documentary material, answers to written interrogatories, or transcripts of oral
testimony produced pursuant to a [CID], or copies thereof, shall . . . be produced for
inspection or copying by, nor shall the contents thereof be disclosed to [anyone else] ...
without the consent of the person who produced such material, answered written
interrogatories, or gave oral testimony .... " RCW 19.86.110(7).
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661-4
In his May 13, 2004, letter to Ameriquest's general counsel, Cox
requested Ameriquest's voluntary cooperation in the Multistate's
investigation. CP at 178. The letter was accompanied by 23 interrogatories
and 24 document requests targeted at Ameriquest' s operations and business
practices, including information concerning Ameriquest's employees and
customers. CP at 172 (Decl. Tiberend 'If 3), 182-93. Nowhere in the letter
are there statutory citations or even a reference to the general subject matter
of the investigation, besides what can be gleaned from the references to
Ameriquest's operations and business practices. Id. at 178. The letter does,
however, prescribe a return date and provides the contact information and
mailing address of Dave Huey of the consumer protection division at the
AGO as the designated individual to whom the material should be produced.
Id. at 178, 181. In the letter, Cox wrote that the Multistate was sending the
letter "in lieu" of a formal CID and that if Ameriquest preferred a formal
CID that the Multistate would reissue its demand "under [its] formal
investigative authority." CP at 178.
Ameriquest argues that we should focus on substance over fonn and
recognize that the AGO did in fact issue aCID, despite the language in the
letter to the contrary. Ameriquest is correct when it argues that RCW
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661-4
19.86.110 does not require a CID to be labeled as "formal" or explicitly say
that the AGO can strip a CID of its status by simply saying that it is not
"formal." What Ameriquest forgets, however, is that the statutory
requirements must be met. Nowhere in Cox's letter is a statutory citation to
the CPA or a description of the general subject matter of the investigation.
To address the lack of statutory citation or description of general
subject matter of the investigation, Ameriquest argues that it was in
communication with the AGO prior to the receipt of Cox's letter, so it knew
that a CPA investigation was underway. Ameriquest argues that this should
be enough to satisfy that element of the statutory requirements. In support
of this argument, Ameriquest again points us to federal authorities, 20 citing
Maccaferri Gab ions, Inc. v. United States, 93 8 F. Supp. 311, 314-15 (D.
Md. 1995), in which the district court held that a CID issued by the antitrust
division of the Department of Justice (DOJ) sufficiently described the nature
20
Ameriquest correctly notes that the CPA is modeled after federal antitrust statutes and
that the legislature expressly provided that Washington courts should be guided by
federal law when interpreting the CPA. RCW 19.86.920. This is because "the
Legislature presumably intended to minimize conflict between the enforcement of state
and federal antitrust laws to avoid subjecting Washington businesses to divergent
regulatory approaches to the same conduct." Blewett v. Abbott Labs., 86 Wn. App. 782,
788, 938 P.2d 842 (1997). Washington courts, consequently, have attempted to depart
from federal law only when it is "rooted in our statutes or case law and not in ... general
policy arguments." !d.
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Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
of the investigation when it used a terse statement that referenced the
Sherman Antitrust Statutes? 1 In ruling the DOJ's CID valid, the Maccaferri
court found it significant that there were other meetings and communications
between counsel for Maccaferri and the antitrust division at which adequate
detail was provided as to the nature of the investigation. !d. at 314.
Ameriquest's reliance on Maccaferri, however, is misplaced because the
DOJ had actually intended to issue aCID, not request voluntary production
and because, despite its being terse, the DOJ' s statement contained a
statutory reference, something required by RCW 19.86.110(2) and totally
absent in Cox's letter.
Ameriquest also cites A. Michael's Piano v. Federal Trade
Commission, 18 F.3d 138, 140 (2d Cir. 1994), in which the plaintiff sought
access, through the Freedom of Information Act (FOIA), 5 U.S. C. § 552, to
the records the Federal Trade Commission (FTC) had obtained through
requests for voluntary production from a piano manufacturer it was
investigating. As an exemption from FOIA, 15 U.S.C. § 57b-2(f) provides
that any material the FTC receives during an investigation "which is
21
The CID said it was issued "to determine whether there is, has been or may be a
violation of§§ 1, 2 of the Sherman Act; § 3 of the Clayton Act by conduct of activities of
the following nature: Agreements and conduct restraining trade in the gabion and gabion
fastening industries." Maccaferri, 938 F. Supp. at 314.
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Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
provided pursuant to any compulsory process . . . or which is provided
voluntarily in place of such compulsory process shall be exempt from
disclosure .... " 18 F.3d at 143. The court held that pursuant to 15 U.S.C. §
57b-2(f), as long as the records were relevant to an ongoing investigation
within the FTC's jurisdiction and could have been subpoenaed had the target
refused to comply, they were exempt from disclosure. Id. at 145-46.
Acknowledging the fact that RCW 19.86.110 lacks any reference to
voluntary production, Ameriquest argues that the policy considerations
behind protecting voluntary production and the CPA's instruction for us to
be guided by federal law should control. In other words, Ameriquest argues,
we should look past the form of the request and look to its substance.
A. Michael's Piano is unpersuasive. The lack of reference to
voluntary production in RCW 19.86.110 is controlling. The PRA is a
"strongly worded mandate for broad disclosure of public records." Hearst
Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). We are to
liberally construe the PRA's disclosure requirements and narrowly construe
its exemptions. RCW 42.56.030. This direction applies to our examination
of RCW 19.86.110, an "other statute" under the PRA. See RCW
42.56.070(1). RCW 19.86.110 only exempts materials produced in response
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Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
to aCID. We should not write an exemption for voluntary production into
the statute. See PAWS, 125 Wn.2d at 262 (the "other statute" exemption
only applies to exemptions explicitly defined in other statutes, courts should
not imply exemptions (citing Brouillet v. Cowles Publ 'g Co., 114 Wn.2d
788, 800, 791 P.2d 526 (1990))). This deviation from federal law is firmly
"rooted in our own statutes." Blewett v. Abbott, 86 Wn. App. 782, 788, 938
P.2d 842 (1997).
Bringing the focus back to Washington cases, Ameriquest cites to
Steele, 85 Wn.2d at 587, in which the plaintiff employment agency sought to
set aside aCID, in part on the grounds that the demand violated the Fourth
Amendment. We found that where "( 1) the inquiry is within the authority of
the agency; (2) the demand is not too indefinite; and (3) the information
sought is reasonably relevant," there is no violation of the Fourth
Amendment to the United States Constitution. Id. at 594. Ameriquest
argues the AGO's request meets all of these requirements, so it is a CID.
The fact that the AGO's request likely satisfies the Steele test means that the
request does not violate the Fourth Amendment, not that it was a CID.
Nothing in Steele supports Ameriquest's argument that a voluntary request
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661-4
receives the same legal status as a compelled process that satisfies all of the
requirements under RCW 19.86.110.
Ameriquest attempts to make much of the fact that the AGO allegedly
promised that the documents would remain privileged and confidential.
Ameriquest argues that these promises amounted to the AGO saying that its
request for voluntary production would be given the same protection as a
CID. The AGO denies making such promises of confidentiality. Regardless
of whether the AGO did make such promises, if the request did not meet the
statutory requirements to qualify as a CID then, pursuant to the PRA' s
preference for disclosure, the documents would not be protected from
disclosure. As discussed above, the AGO's request did not amount to a
CID.
Finally, Ameriquest argues that to not apply the confidentiality
provisions of RCW 19.86.110 to the E-mails would render the statute
meaningless. To the contrary, to hold that the AGO's request for voluntary
production amounted to a CID when the request lacked the necessary
elements to qualify as a CID, and the request explicitly said it was not a
CID, would render the statute meaningless. If the AGO sends a letter to a
party asking it to voluntary produce documentation and in that letter
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Ameriquest Mortg. Co. v. Office ofthe Attorney General, No. 87661-4
expressly states that the request is not a CID and the party refuses to
cooperate, the AGO has no right to judicially enforce the request or to seek
sanctions. The fact that the AGO would inevitably follow up a request for
voluntary cooperation that is rebuffed with a CID does not change the nature
of the initial request. We hold that the AGO's request for voluntary
production was not aCID.
CONCLUSION
The AGO may not disclose theE-mails that contain OLEA-protected
information, even after redacting out the protected information. As we held
the first time this case was before us, the very act of redaction qualifies as
"use" that is prohibited under the GLBA.
However, Ameriquest has failed to meet its burden for an injunction
under RCW 42.56.540. The PRA exemption for investigative records does
not apply to these records because their nondisclosure is not essential for
effective law enforcement. Moreover, Ameriquest has failed to show how
the release of the E-mails would harm it or a vital government function in a
substantial and irreparable way. Furthermore, the trial court did not abuse
its discretion when it ruled that Ameriquest is not entitled to conduct
discovery into why nondisclosure is not essential to effective law
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Ameriquest Mortg. Co. v. Office of the Attorney General, No. 87661-4
enforcement. The declaration of Walsh provided the trial court with a
sufficient basis for its decision.
Finally, Ameriquest's production of materials is not shielded from
disclosure because it was not in response to aCID. The AGO made it very
clear that it was requesting Ameriquest's voluntary cooperation and was not
issuing aCID. Moreover, the AGO's request did not qualify as aCID under
the CPA's requirements. In obedience to the PRA's strong policy favoring
disclosure, we decline to write a protection for voluntary productions into
the CPA.
Accordingly, we reverse the trial court's decision regarding redaction
and disclosure and affirm its holding that the PRA investigative records
exemption and the CPA's shield for CID productions are inapplicable. We
remand to the superior court to determine if any of the E-mails are totally
devoid of nonpublic personal information, as defined by the GLBA. Only
E-mails completely devoid of nonpublic personal information, including
personally identifying information, may be disclosed in a nonaggregated
format.
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WE CONCUR:
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