Jonathan Bloedow v. Planned Parenthood Of The Great Northwest

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PLANNED PARENTHOOD OF THE No. 71039-7-1 o
GREAT NORTHWEST, FEMINIST o
en
WOMEN'S HEALTH CENTERS d/b/a DIVISION ONE 2C
5»
CEDAR RIVER CLINICS, AURORA -<
o
~n -r,
MEDICAL SERVICES, SEATTLE
CO
MEDICAL AND WELLNESS CLINIC,
as»
ALL WOMEN'S HEALTH NORTH, rr
MOUNT BAKER PLANNED *j&
PARENTHOOD, and STATE OF
ro
WASHINGTON - DEPARTMENT OF PUBLISHED OPINION
HEALTH,
Respondents,
v.
JONATHAN BLOEDOW, an individual,
Appellant FILED: May 18, 2015
Schindler, J. — By statute, the Washington State Department of Health (DOH)
collects, analyzes, and publishes health care data from state agencies and private
health care providers. But the statute expressly provides that "data in any form where
the patient or provider of health care can be identified" shall not be subject to disclosure
under the Public Records Act (PRA), chapter 42.56 RCW.1 Jonathan Bloedow
submitted seven separate PRA requests to DOH to obtain the induced termination of
pregnancy data reports that health care providers Planned Parenthood Everett,
1 RCW 43.70.050(2).
No. 71039-7-1/2
Feminist Women's Health Center Renton, Aurora Medical Services, Planned
Parenthood Kenmore, All Women's Health North, Seattle Medical and Wellness Center,
and Planned Parenthood Bellingham were required to submit to DOH. On cross
motions for summary judgment, the court ruled the reports of induced abortions
submitted to DOH were exempt from disclosure under the PRA and issued an
injunction. We hold that providing the records requested by Bloedow under the PRA
would violate the plain and unambiguous language of the statute that prohibits
disclosure of data in a format that identifies the health care provider. We also conclude
the record establishes disclosure of induced abortion data that identifies the health care
provider is not in the public interest and would substantially and irreparably damage the
health care providers and a vital governmental function, and affirm.2
Uniform Health Care Information Act
Washington's Uniform Health Care Information Act (UHCIA), chapter 70.02
RCW, requires health care providers to submit health care information to federal, state,
or local public health authorities "to the extent the health care provider is required by law
to report health care information ... to determine compliance with state or federal
licensure, certification or registration rules or laws; or when needed to protect the public
health." Former RCW70.02.050(2)(a) (2007).3
UHCIA addresses access and disclosure of health care information. The
legislature expressly finds health care information "is personal and sensitive information
2 The court also ruled certain information contained in the spreadsheets was exempt under the
Uniform Health Care Information Act (UHCIA), chapter 70.02 RCW. Because we hold that responding to
the PRA requests violates RCW 43.70.050(2), we need not address redaction of the records under
UHCIA.
3 Effective July 1, 2014, RCW 70.02.050(2)(a) provides that any health care information obtained
under this subsection is exempt from production under the PRA: "Any health care information obtained
under this subsection is exempt from public inspection and copying pursuant to chapter 42.56 RCW."
Laws of 2013, ch. 200, §3.
No. 71039-7-1/3
that if improperly used or released may do significant harm to a patient's interests in
privacy, health care, or other interests." RCW 70.02.005(1). The legislature also finds
that in order to "retain the full trust and confidence of patients, health care providers
have an interest in assuring that health care information is not improperly disclosed and
in having clear and certain rules for the disclosure of health care information." RCW
70.02.005(3). Former RCW 70.02.050(1 )(b) allows a health care provider to disclose
health care information without the patient's authorization if the provider reasonably
believes that the recipient "(i) [wjill not use or disclose the health care information for
any other purpose; and (ii) [wjill take appropriate steps to protect the health care
information."
DOH
DOH has a duty to "assure a healthy environment and minimum standards of
quality in health care facilities and among health care professionals." RCW 43.70.005.
The legislature requires DOH to monitor health care costs, maintain "minimal standards
for quality in health care delivery," and provide "general oversight and planning for all
the state's activities as they relate to the health of its citizenry." RCW 43.70.005.
To "promote and assess the quality, cost, and accessibility of health care
throughout the state," the legislature directs DOH to "create an ongoing program of data
collection, storage, accessibility, and review." RCW 43.70.050(1). RCW 43.70.050(1)
states:
The legislature intends that the department [of health] and board [of
health] promote and assess the quality, cost, and accessibility of health
care throughout the state as their roles are specified in chapter 9, Laws of
1989 1st ex. sess. in accordance with the provisions of this chapter. In
furtherance of this goal, the secretary [of health] shall create an ongoing
program of data collection, storage, assessability, and review. The
No. 71039-7-1/4
legislature does not intend that the department conduct or contract for the
conduct of basic research activity. The secretary may request
appropriations for studies according to this section from the legislature, the
federal government, or private sources.
RCW 43.70.050(2) requires all state agencies "which collect or have access to
population-based, health-related data" to provide "access to such data" and encourages
private entities to provide DOH "access to such data in their possession." The
legislature authorizes DOH to adopt rules necessary to carry out its responsibility for the
collection and disclosure of health care data. RCW 43.70.040. All data provided to
DOH as well as research and findings are "available to the general public." RCW
43.70.050(5). RCW 43.70.050(5) states:
Any data, research, or findings may also be made available to the general
public, including health professions, health associations, the governor,
professional boards and regulatory agencies and any person or group who
has allowed the secretary access to data.
However, RCW 43.70.050(2) specifically states that "[s]uch data in any form where the
patient or provider of health care can be identified" shall not be disclosed or subject to
disclosure under the PRA.4
Induced Abortion Heath Care Data
WAC 246-490-100 requires any hospital or facility performing induced abortions
to collect data and submit a report to DOH with specific details about each procedure on
forms prescribed by the secretary of health. In addition to the information required
under WAC 246-490-100, the DOH forms require health care providers to provide the
patient's city and county of residence, the patient's race, whether the patient is of
Hispanic ethnic origin, whether the patient has had previous spontaneous or induced
abortions, and the date of the patient's last normal menses.
4 Chapter 43.70 RCW does not define "provider of health care." See RCW 43.70.010.
4
No. 71039-7-1/5
WAC 246-490-100 provides:
Each hospital and facility where lawful induced abortions are performed
during the first, second, or third trimester of pregnancy shall, on forms
prescribed and supplied by the secretary, report to the department during
the following month the number and dates of induced abortions performed
during the previous month, giving for each abortion the age of the patient,
geographic location of patient's residence, patient's previous pregnancy
history, the duration of the pregnancy, the method of abortion, any
complications, such as perforations, infections, and incomplete
evacuations, the name of the physician or physicians performing or
participating in the abortion and such other relevant information as may be
required by the secretary. All physicians performing abortions in
nonapproved facilities when the physician has determined that termination
of pregnancy was immediately necessary to the meet a medical
emergency, shall also report in the same manner, and shall additionally
provide a clear and detailed statement of the facts upon which he or she
based his or her judgment of medical emergency.
WAC 246-490-110 states that the information the health care providers submit to
DOH "shall not be disclosed publicly in such a manner as to identify" an individual or a
health care provider facility. WAC 246-490-110 provides:
To assure accuracy and completeness in reporting, as required to fulfill
the purposes for which abortion statistics are collected, information
received by the board or the department through filed reports or as
otherwise authorized, shall not be disclosed publicly in such a manner as
to identify any individual without their consent, except by subpoena, nor in
such a manner as to identify any facility except in a proceeding involving
issues of certificates of approval.
DOH aggregates the data submitted by state agencies and the health care
providers and publishes numerous statistical reports concerning abortions performed in
the state of Washington. All of the reports are publically available on the DOH website
and free of charge.5 DOH currently publishes 26 reports concerning abortion and
pregnancy organized by topic and "categorized by demographic characteristics." See
http://www.doh.wa.gov/DataandStatisticalReportsA/italStatisticsandPopulationData/
5 See http://www.doh.wa.gov/DataandStatisticalReportsA/italStatisticsandPopulationData/
Abortion Pregnancy (last visited Apr. 24, 2015).
No. 71039-7-1/6
AbortionPregnancy/AbortionPregnancyTablesbyTopic (last visited Apr. 24, 2015). DOH
also publishes reports with information on induced abortion and pregnancy "categorized
by year of occurrence," and tables showing "trends in induced abortion and pregnancy
information." See http://www.doh.wa.gov/DataandStatisticalReports/VitalStatisticsand
PopulationData/AbortionPregnancy (last visited Apr. 24, 2015). Consistent with RCW
43.70.050(2) and WAC 246-490-110, the published reports and tables do not contain
any information that could identify a patient or the health care provider performing
abortions.
PRA Requests
In November 2012, Jonathan Bloedow submitted six separate but identical PRA
requests to DOH to obtain "a data extract of Reports of Induced Terminations of
Pregnancy that have occurred during the most recent 12-month period" for Planned
Parenthood Everett, Feminist Women's Health Center Renton, Aurora Medical
Services, Planned Parenthood Kenmore, All Women's Health North, and Seattle
Medical and Wellness Center. On May 20, 2013, Bloedow made a seventh PRA
request for "the abortion records held by the DOH for all pregnancy terminations that
have occurred at the Bellingham Planned Parenthood ... for the most recent 36-month
period."
In response to the PRA requests, DOH prepared a spreadsheet with the induced
abortion data for each health care provider. Each spreadsheet contains 33 columns of
information. Using a unique file number, the spreadsheets list the woman's age, city of
residence, county of residence, state of residence, race, the date of the abortion,
previous spontaneous abortions, previous live births, previous induced abortions,
No. 71039-7-1/7
method of abortion, estimate of gestation in weeks, date of last menses, complications,
and any anomalies.
Before releasing the spreadsheets to Bloedow, DOH notified each of the named
health care providers of the right to seek an injunction under the PRA to prevent
disclosure. The e-mail from DOH to Bloedow states that although DOH "originally
indicated that [it] would provide responsive records by April 1, 2013[,] [p]ursuant to
RCW 42.56.540[,] the Department of Health is exercising [its] 'option of notifying
persons named in the record or to whom a record specifically pertains, that release of a
record has been requested.'"
Planned Parenthood of the Great Northwest, Feminist Women's Health Centers
doing business as Cedar River Clinics, Aurora Medical Services, Seattle Medical and
Wellness Clinic, All Women's Health North, and Mount Baker Planned Parenthood
(collectively the health care providers), "on behalf of themselves and other family
planning providers whose abortion information has been requested," filed a complaint
for a declaratory judgment and injunctive relief to prevent DOH from disclosing the
records to Bloedow.
The complaint alleges Planned Parenthood has 22 health centers in Western
Washington and offers abortion services at 20 locations. Cedar River Clinics has health
centers in Tacoma and Renton and offers abortion services at both locations. Aurora
Medical Services "provides reproductive health services at its clinic in Seattle." Seattle
Medical and Wellness Clinic and All Women's Health North each provide "reproductive
health services" at clinics in Seattle.
No. 71039-7-1/8
The health care providers alleged the records were exempt from disclosure
under RCW 43.70.050(2) and WAC 246-490-110. The health care providers asserted
release of the spreadsheets will associate abortions with a particular facility. The
complaint also alleged information in the spreadsheets could be linked to specific
patients and was "exempt from disclosure under RCW 70.02 ... as the information can
be 'readily associated with' patients' identities." The complaint states that under the
federal Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. sections
1320d to 1320d-8, such "identifiable data" would include "the date of service [and] the
residence of a patient." The health care providers asserted "release of the data would
be highly offensive to a reasonable person and is of no legitimate public concern," and
the release of private health care information violates "the reproductive privacy rights of
individuals in Washington State" under the Reproductive Privacy Act, chapter 9.02
RCW.
On April 26, 2013, the health care providers filed a motion for a temporary
restraining order. In a declaration in support, Planned Parenthood of the Great
Northwest Chief Executive Officer Christine Charbonneau states Planned Parenthood
has "a history with Bloedow, which includes harassment of staff and our business
associates, as well as attempts to learn the identity of our patients." Charbonneau
describes several incidents where Bloedow contacted or attempted to contact staff or
patients of Planned Parenthood clinics. The court entered a temporary restraining
order.
The health care providers filed a motion for summary judgment and entry of an
injunction. The health care providers argued that as a matter of law, the records were
8
No. 71039-7-1/9
exempt from production under RCW 43.70.050(2) and WAC 246-490-110. The health
care providers argued DOH cannot release health care information about abortions that
identifies a facility where an abortion was performed or that contains the patient's city or
county of residence or date the abortion was performed, and requested an order
enjoining DOH from disclosing the data as requested by Bloedow.
The health care providers asserted release of the data in the form requested by
Bloedow would, "per se, disclose the identity of facilities where abortions have been
performed" in violation of RCW 43.70.050(2) and WAC 246-490-110. The health care
providers argued the identification of induced abortion data that is directly related to the
abortion facilities is not of legitimate public concern and disclosure would inhibit women
from exercising "their constitutional and statutory right to access reproductive health
services." In the alternative, the health care providers asserted that under UHCIA,
certain "identifying" patient information must be redacted, including the patient's city and
county of residence and the date of the abortion.
Bloedow filed a cross motion for summary judgment. Bloedow argued the
records were not exempt from disclosure under the PRA and the health care providers
did not establish they were entitled to an injunction preventing production of the
requested records. Bloedow requested an order requiring DOH to provide "all records
requested" within five business days. Alternatively, Bloedow asked the court to conduct
an in camera review of the records.
At the conclusion of the hearing, the court asked DOH to submit two sets of
records for in camera review—the spreadsheets DOH prepared to release to Bloedow
No. 71039-7-1/10
for each facility, and spreadsheets redacting the patient's city and county of residence
and the date of the abortion.6
The court entered an order granting the health care providers' motion for
summary judgment and entry of a permanent injunction prohibiting DOH from releasing
the requested records. The court ruled the records of induced abortions for each of the
named health care providers were exempt from disclosure under RCW 43.70.050(2)
and WAC 296-490-110. The court also ruled that disclosing the city and county of
residence of the patient and the date of the abortion "would violate [UHCIA], RCW 70.02
et seq.," because such information is " 'identifying' or 'readily associated with' patients'
identities." Bloedow appeals. On appeal, DOH does not disagree with the court's
ruling.
The PRA and RCW 43.70.050(2)
Bloedow contends the court erred in denying his motion for summary judgment
and refusing to require DOH to disclose the records he requested under the PRA. The
health care providers assert producing records in the form requested by Bloedow
violates the express language of RCW 43.70.050(2).
We review the decision on summary judgment de novo. Camicia v. Howard S.
Wright Constr. Co.. 179 Wash. 2d 684, 693, 317 P.3d 987 (2014). Judicial review of the
denial of a request under the PRA and the request for injunctive relief under the PRA is
de novo. RCW 42.56.550(3); Bainbridge Island Police Guild v. City of Puvallup, 172
Wash. 2d 398, 407, 259 P.3d 190 (2011). The party seeking to enjoin production of
records under the PRA "bears the burden of proving an exemption or statute prohibits
production in whole or in part." Bainbridge Island, 172 Wash. 2d 398 at 407-08.
6The court entered an order sealing the records DOH submitted for in camera review.
10
No. 71039-7-1/11
The PRA is " 'a strongly worded mandate for broad disclosure of public records'"
that must be liberally construed. Bainbridge Island. 172 Wash. 2d at 408 (quoting Hearst
Corp. v. Hoppe. 90 Wash. 2d 123, 127, 580 P.2d 246 (1978)); Fisher Broadcasting-Seattle
TV LLC v. City of Seattle. 180 Wash. 2d 515, 521, 326 P.3d 688 (2014). The PRA
requirement of disclosure is broadly construed and exemptions are narrowly construed
to "assure that the public interest will be fully protected." RCW 42.56.030.
RCW 42.56.070 requires agencies to provide all records that are not exempt and
to redact only information that falls within a specific exemption. RCW 42.56.070(1)
states, in pertinent part:
Each agency . . . shall make available for public inspection and copying all
public records, unless the record falls within the specific exemptions of
*subsection (6) of this section, this chapter, or other statute which exempts
or prohibits disclosure of specific information or records. To the extent
required to prevent an unreasonable invasion of personal privacy interests
protected by this chapter, an agency shall delete identifying details in a
manner consistent with this chapter when it makes available or publishes
any public record.[7]
RCW 42.56.070 expressly incorporates into the PRA other statutes such as
RCW 43.70.050(2) that either exempt or prohibit disclosure of specific information or
records. The "other statute" exemption avoids any inconsistency and allows other state
statutes and federal regulations to supplement the PRA's exemptions. Ameriguest
Mortq. Co. v. Office of Att'y Gen., 170 Wash. 2d 418, 440, 241 P.3d 1245 (2010): see also
Fisher Broadcasting. 180 Wash. 2d at 525-28 (holding that RCW 9.73.090(1 )(c) of
Washington's privacy act is an "other statute" prohibiting disclosure of video recordings
made by police that "relate to actual, pending litigation"); Ameriguest. 170 Wash. 2d at 424,
440 (holding that a federal statute "requiring financial institutions to 'respect the privacy
7 Emphasis added.
11
No. 71039-7-1/12
of its customers' and 'protect the security and confidentiality of those customers'
nonpublic personal information'. . . together with the [Federal Trade Commission] rule
enforcing it" qualifies as an "other statute"); Hangartner v. City of Seattle. 151 Wash. 2d
439, 453, 90 P.3d 26 (2004) (holding the attorney-client privilege as codified at RCW
5.60.060(2)(a) is an "other statute"); Progressive Animal Welfare Soc'v v. Univ. of
Wash.. 125 Wash. 2d 243, 262, 884 P.2d 592 (1994) (holding the Uniform Trade Secrets
Act, chapter 19.108 RCW, is an "other statute"). "All exceptions, including 'other statute'
exceptions, are construed narrowly." Fisher Broadcasting. 180 Wash. 2d at 525; see RCW
42.56.030. To show an exemption applies, the burden of proof is on the party seeking
to prevent production. RCW 42.56.550(1); Ameriguest. 177 Wash. 2d at 486.
RCW 43.70.050 requires DOH to collect, assess, and review population-based
health care data from state agencies and private health care providers to address
"emerging health needs." RCW 43.70.050(1), (2). While DOH makes "[a]ny data,
research, or findings" available to the public under RCW 43.70.050(5), RCW
43.70.050(2) specifically provides that health-related data submitted to DOH by health
care providers shall not be disclosed or subject to disclosure under the PRA "in any
form where the patient or provider of health care can be identified." RCW 43.70.050(2)
states:
All state agencies which collect or have access to population-based,
health-related data are directed to allow the secretary access to such
data. This includes, but is not limited to, data on needed health services,
facilities, and personnel; future health issues; emerging bioethical issues;
health promotion; recommendations from state and national organizations
and associations; and programmatic and statutory changes needed to
address emerging health needs. Private entities, such as insurance
companies, health maintenance organizations, and private purchasers are
also encouraged to give the secretary access to such data in their
possession. The secretary's access to and use of all data shall be in
12
No. 71039-7-1/13
accordance with state and federal confidentiality laws and ethical
guidelines. Such data in any form where the patient or provider of health
care can be identified shall not be disclosed, subject to disclosure
according to chapter 42.56 RCW, discoverable or admissible in judicial or
administrative proceedings. Such data can be used in proceedings in
which the use of the data is clearly relevant and necessary and both the
department and the patient or provider are parties.
We review statutory interpretation de novo. Dep't of Ecology v. Campbell &
Gwinn, LLC. 146 Wash. 2d 1, 9, 43 P.3d 4 (2002). Our objective is to ascertain and give
effect to legislative intent. Campbell & Gwinn. 146 Wash. 2d at 9. Statutory interpretation
begins with the plain meaning of the statute. When the meaning of the statute is plain
on its face, the court must give effect to that plain meaning as the expression of the
legislature's intent. Bostain v. Food Express. Inc.. 159 Wash. 2d 700, 708, 153 P.3d 846
(2007); City of Spokane v. Spokane County, 158 Wash. 2d 661, 673, 146 P.3d 893 (2006).
We look first to the text of a statute to determine its meaning. Griffin v. Thurston
County Bd. of Health, 165 Wash. 2d 50, 55, 196 P.3d 141 (2008). If a statute is plain and
unambiguous, the meaning of the statute must be determined from the wording of the
statute itself. W. Telepage. Inc. v. City of Tacoma Dep't of Fin., 140 Wash. 2d 599, 608-
09, 998 P.2d 884 (2000). Where a statute is clear on its face, its plain meaning should
" 'be derived from the language of the statute alone.'" Ford Motor Co. v. City of Seattle,
Exec. Servs. Dep't, 160 Wash. 2d 32, 41, 156 P.3d 185 (2007) (quoting Kilian v. Atkinson,
147 Wash. 2d 16, 20, 50 P.3d 638 (2002)). If the plain language is subject to only one
interpretation, our inquiry is at an end. Lake v. Woodcreek Homeowners Ass'n, 169
Wash. 2d 516, 526, 243 P.3d 1283 (2010).
We also employ traditional rules of grammar in discerning the plain language of
the statute. In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wash. 2d 834, 838-39,
13
No. 71039-7-1/14
215 P.3d 166 (2009). "[W]e 'must not add words where the legislature has chosen not
to include them,' and we must 'construe statutes such that all of the language is given
effect.'" Lake, 169 Wash. 2d at 526 (quoting Rest. Dev.. Inc. v. Cananwill, Inc., 150 Wash. 2d
674, 682, 80 P.3d 598 (2003)). A construction that would render a portion of a statute
meaningless or superfluous should be avoided. Ford. 160 Wash. 2d at 41. Statutes must
be interpreted and construed so that all the language used is given effect. Davis v.
Dep't of Licensing. 137 Wash. 2d 957, 963, 977 P.2d 554 (1999). "We avoid
interpretations 'that yield unlikely, absurd or strained consequences.'" Broughton
Lumber Co. v. BNSF Ry. Co.. 174 Wash. 2d 619, 635, 278 P.3d 173 (2012) (quoting Kilian.
147Wn.2dat21).
RCW 43.70.050(2) expressly states that health care "data in any form where the
patient or provider of health care can be identified shall not be disclosed, subject to
disclosure according to chapter 42.56 RCW. discoverable or admissible in judicial or
administrative proceedings."8 The use of the word "shall" is a mandatory directive. See
Amren v. City of Kalama. 131 Wash. 2d 25, 35, 929 P.2d 389 (1997); Wash. State
Coalition for the Homeless v. Dep't of Soc. & Health Servs.. 133 Wash. 2d 894, 907-08,
949 P.2d 1291 (1997); Strenge v. Clarke. 89 Wash. 2d 23, 29, 569 P.2d 60 (1977). The
mandatory directive "shall not be" modifies the three following terms that are set off by
commas—"disclosed," "subject to disclosure according to chapter 42.56 RCW," and
"discoverable or admissible in judicial or administrative proceedings"—indicating the
three terms are alternatives to each other and meant to be read together as a common
8 Emphasis added.
14
No. 71039-7-1/15
idea.9 Fraternal Order of Eagles. Tenino Aerie No. 564 v. Grand Aerie of Fraternal
Order of Eagles. 148 Wash. 2d 224, 240, 59 P.3d 655 (2002); see also William Strunk, Jr.
& E.B. White, The Elements of Style 30 (3d ed. 1979).
We hold RCW 43.70.050(2) is an "other statute" under the PRA and a specific
statutory provision that governs a PRA request for disclosure of health care data where
the patient or provider can be identified. Ass'n of Wash. Spirits & Wine Distribs. v.
Wash. State Liquor Control Bd.. 182 Wash. 2d 342, 356, 340 P.3d 849 (2015) (a general
statutory provision must yield to a more specific provision). The plain and unambiguous
language of the statute exempts from disclosure under the PRA health-related data
requested "in any form where the patient or provider. . . can be identified." RCW
43.70.050(2).
In response to the PRA requests for induced termination of pregnancy data
submitted to DOH by each of the named health care providers, DOH prepared a
separate spreadsheet with data for each provider. The spreadsheets alone do not
identify the health care providers. However, there is no dispute that providing the
spreadsheets in response to the PRA requests will identify each health care provider in
connection with the data that provider submitted to DOH. Bloedow concedes the
"targeted" PRA requests for each identified health care provider seeks data submitted to
DOH by "specific abortion facilities." Bloedow also concedes "de facto identification of
specific abortion facilities" is "a necessary part of the response" to his PRA requests.
Nonetheless, Bloedow relies on Koenig v. City of Pes Moines. 158 Wash. 2d 173, 142
9 See RCW 43.70.050(2).
15
No. 71039-7-1/16
P.3d 162 (2006), and Bainbridge Island to argue that the targeted requests cannot be
considered in determining whether the records are exempt from disclosure. Koenig and
Bainbridge Island are distinguishable.
In Koenig. the father of a child victim of sexual assault submitted a PRA request
to the city, identifying the child by name and referencing the case number in asking for
the city to provide all records concerning the sexual assault of his daughter. Koenig.
158 Wash. 2d at 178. The city denied the request under a statute that barred disclosure of
information revealing the identity of child victims of sexual assault, former RCW
42.17.31901 (1992).10 Koenig. 158 Wash. 2d at 181. Under former RCW 42.17.31901,
"[information revealing the identity of child victims of sexual assault... is confidential
and not subject to public disclosure." The statute defined "identifying information" to
mean "the child victim's name, address, location, photograph, and in cases in which the
child victim is a relative or stepchild of the alleged perpetrator, identification of the
relationship between the child and the alleged perpetrator." See Koenig. 158 Wash. 2d at
181.11 The city argued that even with redaction, "the very act of disclosure would
identify [his daughter] as a child victim of sexual assault." Koenig. 158 Wash. 2d at 181.
The Washington State Supreme Court reversed. The court held the plain and
unambiguous language of former RCW 42.17.31901 "excludes from disclosure only the
10 Repealed by Laws of 2005, ch. 274, § 429.
11 Former RCW 42.17.31901 states:
Identity of child victims of sexual assault exempt. Information revealing the identity
of child victims of sexual assault who are under age eighteen is confidential and not
subject to public disclosure. Identifying information means the child victim's name,
address, location, photograph, and in cases in which the child victim is a relative or
stepchild of the alleged perpetrator, identification of the relationship between the child
and the alleged perpetrator.
(Boldface in original.)
16
No. 71039-7-1/17
information falling within one of the enumerated categories, and not entire records."
Koenig. 158 Wash. 2d at 182.
The dissent argued "the entire record should be exempt because to disclose the
record with identifying information blacked out would be meaningless protection in light
of the nature of the request." Koenig. 158 Wash. 2d at 193 (Fairhurst, J., dissenting). The
majority rejected that argument, stating the dissent cited no statutory language or case
law to support the notion that we may "look beyond the four corners of the records at
issue" or the "nature of the request" in determining whether the records were properly
withheld. Koenig. 158 Wash. 2d at 182-83.
Unlike in Koenig where the plain language of the statute exempted only
specifically defined information from disclosure,12 RCW 43.70.050(2) unambiguously
exempts from disclosure under the PRA health-related data "in any form where the
patient or provider can be identified."13 Disclosing the records as requested by Bloedow
would violate the clear and unambiguous terms of RCW 43.70.050(2).
In Bainbridge Island, the PRA requests sought records related to the
investigation of sexual misconduct by a police officer. Bainbridge Island. 172 Wash. 2d at
404-05. Because newspaper articles had previously identified the police officer, the
PRA requests identified the officer by name. Bainbridge Island. 172 Wash. 2d at 405-06.
The police officer sought an injunction to prevent disclosure of the records. Bainbridge
Island. 172Wn.2dat406.
The Washington State Supreme Court addressed whether the records fell under
the personal information exemption or the investigative records exemption of the PRA.
12 See former RCW 42.17.31901.
13 Emphasis added.
17
No. 71039-7-1/18
Bainbridge Island. 172 Wash. 2d at 408-09. The lead opinion14 held the officer maintained
"his right to privacy in his identity, regardless of the media coverage of this
unsubstantiated allegation," and the agency "should look to the contents of the
document," not the knowledge of third parties, in deciding whether "the subject of a
report has a right to privacy in their identity." Bainbridge Island. 172 Wash. 2d at 413-14.
Under the PRA, [the police officer] maintains his right to privacy in
his identity, regardless of the media coverage of this unsubstantiated
allegation. An agency should look to the contents of the document, and
not the knowledge of third parties when deciding if the subject of a report
has a right to privacy in their identity. Even though a person's identity
might be redacted from a public record, the outside knowledge of third
parties will always allow some individuals to fill in the blanks. But just
because some members of the public may already know the identity of the
person in the report does not mean that an agency does not violate the
person's right to privacy by confirming that knowledge through its
production.
Bainbridge Island. 172 Wash. 2d at 413-14.
The lead opinion concluded the identity of the police officer should be redacted
but the remainder of the reports were not exempt from production because "the nature
of the investigations is a matter of legitimate public concern." Bainbridge Island, 172
Wn.2dat417-18.
Unlike the exemptions in the Bainbridge Island case, RCW 43.70.050(2) does not
turn on whether an individual's right to privacy would be violated by disclosure.
Accordingly, it is not necessary to conduct the same kind of balancing inquiry to
determine whether the exemption applies. Because production of the records in
14 Four justices concurred in the majority. Bainbridge Island, 172 Wash. 2d at 424. Four justices
concurred in part, agreeing with the lead opinion that the records were not exempt but disagreeing that
redaction of the officer's identity was proper. Bainbridge Island, 172 Wash. 2d at 424-31. One justice
dissented, arguing the records were exempt under the investigative records exemption. Bainbridge
Island. 172Wn.2dat431.
18
No. 71039-7-1/19
response to the targeted requests would identify the health care provider, the records
are exempt from disclosure under RCW 43.70.050(2).
Further, as the health care providers point out, Bloedow is not foreclosed from
obtaining abortion health care data and there are a number of ways DOH could release
the spreadsheets "without disclosing the facility at which each woman had her abortion."
For example, the "data could be released in one spreadsheet containing the information
from all the facilities combined, ensuring that no patient can be connected to a particular
facility and that no particular facility is disclosed as having provided abortions."15
Bloedow argues that even if disclosing the records in response to his requests
would violate RCW 43.70.050(2), because RCW 43.70.050(2) conflicts with RCW
42.56.210(1), the PRA controls.
RCW 42.56.030 states that "[i]n the event of conflict between the provisions of
[the PRA] and any other act, the provisions of [the PRA] shall govern."
We hold there is no conflict between RCW 43.70.050 and RCW 42.56.210(1).
RCW 42.56.210(1) provides that "[n]o exemption may be construed to permit the
nondisclosure of statistical information not descriptive of any readily identifiable person
or persons." RCW 42.56.210(1) states:
Except for information described in *RCW 42.56.230(3)(a) and confidential
income data exempted from public inspection pursuant to RCW
84.40.020, the exemptions of this chapter are inapplicable to the extent
that information, the disclosure of which would violate personal privacy or
vital governmental interests, can be deleted from the specific records
sought. No exemption may be construed to permit the nondisclosure of
statistical information not descriptive of any readily identifiable person or
persons.[16]
15 Emphasis in original.
16 Emphasis added.
19
No. 71039-7-1/20
Consistent with the PRA, RCW 43.70.050(5) permits disclosure of "[a]ny data, research,
or findings" but under RCW 43.70.050(2), prohibits disclosure under the PRA in any
manner that identifies a patient or provider.
Injunction
Bloedow also contends the health care providers did not meet their burden for
injunctive relief under RCW 42.56.540. Bloedow argues disclosure of the records is in
the public interest and would not "substantially and irreparably damage" any person.
SeeRCW42.56.540.17
Under RCW 42.56.540, an agency or "a person who is named in the record or to
whom the record specifically pertains" may seek an injunction to prevent disclosure of a
requested record.18 The party seeking the injunction must show "(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." Ameriguest, 177 Wash. 2d at 486-87.
Under UHCIA, the legislature expressly finds that "[hjealth care information is
personal and sensitive information that if improperly used or released may do significant
harm" to a patient and health care provider. RCW 70.02.005(1). "In order to retain the
17 In support, Bloedow repeatedly quotes from Laws of 2001, chapter 98, section 1 to argue that
the legislature has determined access to demographic records are in the public interest because "public
health and safety is promoted when the public has knowledge that enables them to make informed
choices about their health and safety," and because "the public has a right to information necessary to
protect members of the public from harm caused by alleged hazards or threats to the public." But this
legislative finding relates to "the public disclosure of specific and unique information related to criminal
acts of terrorism." Laws of 2001, ch. 98, § 1 (emphasis added).
18 RCW 42.56.540 provides, in pertinent part:
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.
20
No. 71039-7-1/21
full trust and confidence of patients," health care providers "have an interest in assuring
that health care information is not improperly disclosed and in having clear and certain
rules for the disclosure of health care information." RCW 70.02.005(3).
The public has an interest in the quality, cost, and accessibility of health care,
including abortion services. The data Bloedow requests is available in an aggregated
format in the detailed reports DOH publishes on its website. But the record supports the
conclusion that the public interest in obtaining statistical data about abortions in
Washington does not extend to information that identifies patients or health care
providers. The public has no legitimate interest in the health care or pregnancy history
of any individual woman or where any particular abortion was performed.
The record also establishes that disclosure would substantially and irreparably
damage a vital government interest. In adopting WAC 246-490-110, DOH found that in
order to ensure health care providers submit accurate and complete health information,
the providers must be guaranteed that the data provided will not be disclosed to the
public in a way where the patient or provider could be identified. The health care
providers state in their declarations that they take their "responsibilities for patient
confidentiality and privacy extremely seriously," and in complying with the requirements
to provide data about abortions performed, they rely on DOH's guaranty in WAC 246-
490-110 that it will not disclose the information in any form that will identify either the
patient or the health care provider. Disclosure of the records would jeopardize the
ability of DOH to obtain information from health care providers about abortions
performed and, consequently, the requirement to "promote and assess the quality, cost,
21
No. 71039-7-1/22
and accessibility of health care." RCW 43.70.050(1). We conclude the health care
providers have met their burden for an injunction under RCW 42.56.540.
We hold that the release of the records as requested by Bloedow under the PRA
violates RCW 43.70.050(2), and affirm entry of the injunction.
•ii^uMi? P^rV"
WE CONCUR:
l-cr.^f., (.-o„
22