BIAW v. STATE, DEPARTMENT OF L&I

• Citation: 123 Wn. App. 656,123 Wash. App. 656,98 P.3d 537
• Decision Date: 05 October 2004
• Docket Number: No. 30248-9-II.,30248-9-II.
• Court: Court of Appeals of Washington
• Parties: The BUILDING INDUSTRY ASSOCIATION OF WASHINGTON; Allied Daily Newspapers of Washington, and The Washington Newspaper Publishers Association, Appellants and Cross-Respondents v. STATE of Washington DEPARTMENT OF LABOR & INDUSTRIES, a state agency, Respondent and Cross-Appellant.

98 P.3d 537

123 Wn. App. 656

123 Wash. App. 656

The BUILDING INDUSTRY ASSOCIATION OF WASHINGTON; Allied Daily Newspapers of Washington, and The Washington Newspaper Publishers Association, Appellants and Cross-Respondents v. STATE of Washington DEPARTMENT OF LABOR & INDUSTRIES, a state agency, Respondent and Cross-Appellant.

No. 30248-9-II.

Court of Appeals of Washington, Division 2.

October 5, 2004.

Greg Overstreet, Perkins Coie LLP, Timothy Dunning Ford, Attorney at Law, Olympia, WA, for Appellants/Cross-Respondents.

Michael King Hall, Office of the Atty General, Olympia, WA, for Respondent/Cross-Appellant.

QUINN-BRINTNALL, C.J.

Building Industry Association of Washington (BIAW) and two newspaper industry associations sought disclosure of ergonomics related voluntary compliance reports under the Washington Public Disclosure Act (PDA). They appeal the trial court's decision to award them PDA penalties on a per day, not per record, basis. The Department of Labor and Industries (L & I) cross appeals the trial court's decision to order disclosure of the reports, contending that the Washington Industrial Safety and Health Act (WISHA) exempts public disclosure of these reports. We hold that the legislature expressly exempted these WISHA reports from public disclosure. Therefore, we do not address the parties' arguments regarding the proper calculation of the penalty amount, and we reverse the penalty, attorney fee, and costs awards.

FACTS

On March 26, 2002, the BIAW¹ filed a PDA public records request² with L & I to determine how L & I monitored compliance with its own ergonomics rules.³ Within five business days of receipt, L & I advised BIAW that it would need an additional 30 days to complete the request. On April 29, 2002, L & I sent a letter to BIAW that identified consultation reports addressing ergonomics rules but denied disclosure, citing a WISHA exemption for "[i]nformation obtained... as a result of employer-requested consultation and training services" under RCW 49.17.250(3). 1 Clerk's Papers (CP) at 32. On May 2, BIAW sought administrative review of the decision, and on May 10, L & I again denied BIAW's disclosure request.

On September 4, 2002, Allied Daily Newspapers of Washington (ADNW)⁴ and the Washington Newspaper Publishers Association (WNPA)⁵ (hereinafter collectively referred to as the Newspapers) joined BIAW's public records request for the employers' voluntary ergonomic consultation reports. BIAW filed suit in Thurston County Superior Court on September 9, 2002. The same day, BIAW moved that L & I show cause why it should not disclose the reports. On September 11, 2002, the Newspapers joined BIAW as co-plaintiffs in the lawsuit to compel disclosure.

On October 25, 2002, the trial court orally ruled that the reports "are available for public inspection at [L & I]." Report of Proceedings (RP) (October 25, 2002) at 29.

[O]nce [L & I] is required to disclose to specific individuals, other than employers from whom they obtained the information for their voluntary service reports, ... they take themselves outside the confidentiality protection that is earlier provided in the statute.

RP (October 25, 2002) at 29. Although the court required disclosure of the reports, it also stated that it would permit some redaction.

L & I submitted its "Proposed Principles of Redaction" on November 1. 3 CP at 509. But the trial court found that the submission was not done in good faith and directed that only individual employee names be redacted from the reports. L & I disclosed the consultation reports on November 18, 2002. At that time, the court had yet to award penalties or fees under the PDA.

A penalty hearing was held on March 5, 2003. The trial court followed Division One's January 6, 2003 opinion in Yousoufian v. Office of Ron Sims, 114 Wash.App. 836, 60 P.3d 667, review granted, 150 Wash.2d 1001, 77 P.3d 651 (2003), and did not award penalties per record.⁶ Instead, the trial court awarded a penalty of $10 per day from April 2, 2002, until its October 25, 2002 redaction order and $75 per day from October 25, 2002, until the November 18 disclosure. This resulted in a penalty amount of $3,925 for BIAW and $2,305 for the Newspapers. The trial court also awarded BIAW and the Newspapers their attorney fees and costs under the PDA.

BIAW and the Newspapers appealed, contending that the PDA penalty should be calculated on a per-record basis. L & I cross appealed, challenging the trial court's determination that the records were disclosable and the corresponding award of penalties, attorney fees, and costs for nondisclosure.

To protect worker health and safety interests, the legislature exempted WISHA's voluntary ergonomic consultation reports from disclosure under the PDA. Accordingly, we hold that the penalty, attorney fee, and costs awards to BIAW and the Newspapers were improper.

ANALYSIS

THE PDA

The PDA was passed by initiative in 1972. See Laws of 1973, ch. 1; RCW 42.17.250-.348. The act requires that all state and local agencies disclose any public record upon request unless it falls within certain specific enumerated exemptions. RCW 42.17.260(1). These include the exemptions set out in RCW 42.17.260(6), RCW 42.17.310, and RCW 42.17.315, as well as any "other statute which exempts or prohibits disclosure of specific information or records." RCW 42.17.260(1) (emphasis added).

The central purpose of the PDA is "preservation of the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions." King County v. Sheehan, 114 Wash.App. 325, 335, 57 P.3d 307 (2002) (quoting Progressive Animal Welfare Soc'y v. Univ. of Washington, 125 Wash.2d 243, 251, 884 P.2d 592 (1994) ("PAWS II"); RCW 42.17.251). The PDA is "a strongly worded mandate for broad disclosure of public records." Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978); Amren v. City of Kalama, 131 Wash.2d 25, 31, 929 P.2d 389 (1997); PAWS II, 125 Wash.2d at 251, 884 P.2d 592. We liberally construe the act's disclosure provisions and narrowly construe its exemptions. Sheehan, 114 Wash.App. at 336, 57 P.3d 307 (citing RCW 42.17.251; RCW 42.17.010(11); PAWS II, 125 Wash.2d at 251, 884 P.2d 592; Amren, 131 Wash.2d at 31, 929 P.2d 389). An agency must prove that its refusal to disclose requested information "is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records." RCW 42.17.340(1); Sheehan, 114 Wash.App. at 336, 57 P.3d 307.

If the requested material contains both exempt and nonexempt material, the exempt material may be redacted, but the remaining material must be disclosed. RCW 42.17.310(2); Amren, 131 Wash.2d at 32, 929 P.2d 389. As a general rule, provisions in "other statutes" which exempt or prohibit disclosure of specific information or records are incorporated into the PDA. RCW 42.17.260(1). Unless such other statutes conflict with the PDA, we treat them as supplementing the PDA. Deer v. Dep't of Soc. & Health Serv., 122 Wash.App. 84, 93 P.3d 195, 198 (2004); PAWS II, 125 Wash.2d at 261-62, 884 P.2d 592 (citing RCW 42.17.920). If an exemption statute conflicts with the PDA, the PDA controls. PAWS II, 125 Wash.2d at 262, 884 P.2d 592 (citing RCW 42.17.920). Thus, if another statute (1) does not conflict with the act, and (2) either exempts or prohibits disclosure of specific public records in their entirety, then (3) the information may be withheld in its entirety. PAWS II, 125 Wash.2d at 262, 884 P.2d 592.⁷

L & I argues that to protect worker health and safety the legislature enacted RCW 49.17.250(3) to exempt public disclosure of the records of voluntary ergonomic consultations. The trial court concluded that requiring these reports to be made available to employees and their collective bargaining representatives vitiated confidentiality: "Because of this requirement, the reports are no longer confidential and are subject to public inspection and disclosure pursuant to RCW ch. 42.17 thirty days after they are received by the employer." CP 511 (Conclusion of law no. 5). L & I asserts that the trial court erred.

Because the record here consists of affidavits, memoranda, and other documentary evidence, we stand in the same position as the trial court and our review of the record is de novo. Violante v. King County Fire Dist. No. 20, 114 Wash.App. 565, 568, 59 P.3d 109 (2002) (citing PAWS II, 125 Wash.2d at 252, 884 P.2d 592). See Hangartner v. City of Seattle, 151 Wash.2d 439, 447, 90 P.3d 26 (2004)

. By enacting RCW 49.17.250(3), the legislature exempted L & I's voluntary ergonomic consultation records from public disclosure. The legislature clearly did not intend that requiring L & I to release the WISHA reports to the employees whom the consultations were intended to protect would vitiate their exemption from public disclosure. To the contrary, the legislature deemed that confidentiality of the reports was necessary to promote employers' voluntary participation in the program.⁸

WISHA

The legislature designed WISHA's voluntary consultation system to improve workers' safety by encouraging cooperative efforts by employers and L & I. RCW 49.17.050(8) establishes a voluntary compliance program for employers, which includes on-site health and safety consultations with L & I representatives. At an employer's request, L & I will conduct consultation visits to address "the interpretation and applicability of safety and health standards to the conditions, structures, machines, equipment, apparatus, devices, materials, methods, means, and practices in the [requesting] employer's work place." RCW 49.17.250(1). L & I's representative consults with the employer and employees to make recommendations to eliminate workplace hazards. RCW 49.17.250(2). The visit is a consultation, not an inspection. No civil penalties will be assessed unless the visit discloses a...