ACLU of Washington v. City of Seattle

• Decision Date: 03 May 2004
• Docket Number: No. 52946-3-I.,52946-3-I.
• Citation: 121 Wash.App. 544,89 P.3d 295
• Court: Washington Court of Appeals
• Parties: The AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON, Appellant, v. CITY OF SEATTLE, Respondent.

89 P.3d 295

121 Wash.App. 544

The AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON, Appellant, v. CITY OF SEATTLE, Respondent.

No. 52946-3-I.

Court of Appeals of Washington, Division 1.

May 3, 2004.

Traci Ann Sammeth, Attorney At Law, Aaron Caplan, Attorney At Law, Seattle, WA, for Appellant.

Thomas Carr, Jessica Nadelman, Seattle City Attorney's Office, Seattle, WA, for Respondent.

AGID, J.

The American Civil Liberties Union (ACLU) appeals a trial court decision that records it requested under the public disclosure act (Act) were exempt from disclosure under the deliberative process exemption to the Act, and under the Open Public Meetings Act of 1971 (Chapter 42.30 RCW) (OPMA). Although we conclude as a matter of law that the OPMA does not protect written documents from disclosure, we cannot determine on this record whether the documents at issue in this case are exempt under the Act. We remand for in camera review of the documents.

FACTS

The Seattle Police Officers Guild (Guild) is a private labor union representing Seattle police officers on labor and employment issues. In November 2002, in anticipation of new contract negotiations with the City of Seattle, the Guild gave the City a list of issues it planned to address in the negotiations. In return, the City provided the Guild with its list of issues for negotiation. The ACLU requested a copy of both lists under the Act, chapter 42.17 RCW. The City refused to disclose the lists because it believed they were exempt from disclosure under the Act. The ACLU then filed a lawsuit to force the City to disclose the lists. Neither party requested in camera review of the documents, and the trial court did not review them. The trial court ruled in favor of the City, concluding that the lists were exempt from the Act because they were part of the deliberative process. It also ruled that the OPMA protected the documents from disclosure. The ACLU appeals.

ANALYSIS

I. Public Disclosure Act

"The public records portion of the public disclosure act ... requires all state and local agencies to disclose any public record upon request, unless the record falls within certain very specific exemptions."¹ The purpose of the Act is to ensure that the people of Washington remain sovereign and that public officials and institutions remain accountable to the people for their decisions.² The Act's provisions must be liberally construed to promote the public policy, and exemptions from it must be strictly construed.³ When an agency refuses to disclose information, it bears the burden of proving that its refusal is valid based on one of the exemptions included in the Act.⁴

RCW 42.17.310(1)(i) exempts from disclosure

[p]reliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with any agency action.

The purpose of this deliberative process exemption —protecting the give and take of deliberations that are necessary to formulate agency policy—severely limits the scope of the exemption.⁵ In order to invoke this exemption,

an agency must show that [1] the records contain predecisional opinions or recommendations of subordinates expressed as part of a deliberative process; [2] that disclosure would be injurious to the deliberative or consultative function of the process; [3] that disclosure would inhibit the flow of recommendations, observations, and opinions; and [4] ... that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision is based.[⁶]

An appellate court reviews de novo a trial court's decision about whether documents or records fall under an exemption to the Act.⁷

We must determine in this case whether the lists qualify as "predecisional opinions or recommendations ... expressed as part of the deliberative process."⁸ Resolving this question turns on how the lists were generated and their function in the context of the decision-making process. We have only the parties' differing characterizations of the lists on which to resolve this issue. The ACLU asserts that the lists are each party's final decision on which issues are important to them in the bargaining process. The City counters that the issue lists include opinions about what the negotiators may discuss and do not contain final policy decisions. The City characterizes them as a "wish list or tentative agenda" for issues both parties will resolve in the upcoming "give and take" negotiations that precede the final policy decision by the City Council. While the City has seen the lists and the ACLU has not, we do not think it wise to adopt one party's characterization without subjecting it to a neutral, independent review. Without more information about the lists, such as what they actually contain, how they were generated, and who generated them, neither we nor the trial court can properly determine whether they are exempt from disclosure under the Act.⁹ Accordingly, we remand for in camera review in the trial court.¹⁰ We do not, however, need to review the lists to resolve several other issues the parties have raised and briefed. In the interest of judicial economy, we address them below.

The ACLU asserts that the issue lists in this case do not fall under the Act's deliberative process exemption because they are not intra-agency records, nor were they prepared by a governmental agency or a "subordinate," and the City has not shown that disclosure would be injurious to the deliberative function or inhibit the flow of recommendations, observations, and opinions. We disagree.

First, the statute does not limit the exemption to intra-agency documents prepared by a government agency. While the statute does exempt intra-agency documents, it also exempts "[p]reliminary drafts, notes, recommendations ... in which opinions are expressed or policies formulated or recommended."¹¹ The term "intra-agency" in the exemption does not subsume but is in addition to the other forms of communication the exemption lists. This interpretation is consistent with case law. For instance, in PAWS,¹² the court exempted from public disclosure documents prepared by scientists employed outside of a state agency. The Progressive Animal Welfare Society had made a public disclosure request for a copy of an unfunded grant proposal involving rhesus monkeys.¹³ After the grant proposal was reviewed and approved at several levels within the University, it was submitted to the National Institutes of Health (NIH) for funding.¹⁴ There, a group of scientists review the proposal and create peer review evaluations called "pink sheets," which critique the proposal and recommend approval or disapproval.¹⁵ After it makes its funding decision, the NIH gives the pink sheets to the applicant, who often revises and resubmits rejected proposals based on the comments and suggestions in the pink sheets. The court held that while disclosing the unfunded proposals themselves did not reveal any deliberative policy-making process, the pink sheets pertaining to unfunded proposals did because they were part of an ongoing process.¹⁶ Accordingly, it concluded they were exempt from disclosure under the Act.¹⁷ The NIH is obviously not a state agency, so the exempt documents could not be "intra-agency" memoranda. Rather, they were "recommendations" made as part of the deliberative process.

Nor does the statute require that exempt documents be prepared by subordinates. We recognize that the PAWS court recites that term in its articulation of the test,¹⁸ but this is not part of its holding and indeed is contrary to its ruling protecting the pink sheets from disclosure. And the word "subordinate" does not appear anywhere in the relevant sections of the statute. The pink sheets the court held were exempt from disclosure in PAWS were not prepared by the University or any of its subordinates, and the NIH scientists who prepared them were not employees or subordinates of the University. Rather, they were documents prepared by members of an organization outside of the University whose independent scientists evaluated proposals as part of a "quintessentially deliberative process."¹⁹ The statute does not require or even suggest that exempt documents must be prepared by subordinates.

We also conclude that the City has established that disclosure would be injurious to the deliberative or consultative function and inhibit the negotiation process. It submitted eight declarations explaining the negative impact of disclosure on successful negotiations. The declarations discuss the importance of keeping collective bargaining confidential, as well as how merely disclosing tentative issue lists, like those in this case, could negatively affect the process of reaching agreement through negotiations.²⁰ The ACLU argues that the City has not met its burden because although it provides evidence that the disclosure would affect the flow of information in negotiations between the City and the Guild, it fails to show that disclosing the lists would inhibit the flow of recommendations, observations, and opinions among City's policymakers. This distinction is not persuasive. The negotiations themselves are an integral part of a deliberative process that culminates in the policies the City decides to adopt concerning the police department. The lists are only a starting point for a complex and delicate policy-making process. If the negotiations are negatively impacted, then so would be the City's deliberative policy-making process.

The problem with the ACLU's position on this issue is that it fails to recognize that labor negotiations are an ongoing process in which the City's negotiators, like the Guild's representatives, must respond to the ever-changing tableau of collective bargaining. The City's negotiators are not free to adopt their own...