Cortland v. Pierce Cnty.
| Decision Date | 21 September 2020 |
| Docket Number | CASE NO. C20-5155RJB |
| Parties | Brian CORTLAND, Plaintiff, v. PIERCE COUNTY, Defendant. |
| Court | U.S. District Court — Western District of Washington |
Joseph Thomas, Law Office of Joseph Thomas PLLC, Renton, WA, for Plaintiff.
Jayne Lyn Freeman, Keating Bucklin McCormack Inc. PS, Seattle, WA, for Defendant.
THIS MATTER is before the Court on Defendant Pierce County's Motion for Summary Judgment. [Dkt. # 14]. The Court has considered the pleadings and materials filed in support of and in opposition to the Motion.
The parties have stipulated [Dkt. # 12] to the following undisputed facts: On October 31, 2019, Cortland made a Public Records Act request to the Pierce County Prosecuting Attorney's Office, seeking Pierce County Deputy Prosecutor Frank Cornelius's identification badge, which includes his photograph. The County responded with documents and a privilege log. It produced only a redacted copy of Cornelius's ID badge, because photographs of criminal justice agency employees (like him) are statutorily exempt from a PRA request. RCW 42.56.250(8). There is an exception to the exemption for members of the news media. Id. Cortland is not a member of the news media.
On January 31, 2020, Cortland sued in Pierce County Superior Court, asserting a state law PRA claim and a First Amendment claim. The County timely removed the case here. [Dkt. # 1-1].
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The PRA exempts from public inspection and copying "Photographs and month and year of birth in the personnel files" of "employees of criminal justice agencies[.]" This exemption does not apply to members of the news media, as defined in RCW 5.68.010(5). RCW 42.56.250(8).
Cortland's Complaint [Dkt. # 1-1] alleges that Pierce County violated the PRA for two reasons: First, it wrongly applied this "sham" exemption when his request for the ID badge and photograph did not also seek "the month and year" of Cornelius's birth. Second, he claims the County waived the exemption because he claims (and amply1 demonstrates), Cornelius's photograph is "in the public domain." He seeks statutory penalties, costs and fees.
Cortland also asserts a First Amendment claim, arguing that a request for government information is "speech," and that the PRA unconstitutionally distinguishes between the news media's speech and his, by carving out a media exception from the exemption. He argues that RCW 42.56.250(8) is facially void as a "content-based restriction on speech," and asks the Court to invalidate it as unconstitutional.
Pierce County seeks summary judgment on both claims. It urges the Court to address the issues in reverse order because, it claims, disposal of Cortland's First Amendment claim disposes of his PRA claim.
The County argues that RCW 42.56.250(8) does not violate the First Amendment because "laws restricting public access to governmental records do not implicate the First Amendment, at all."
Citing Boardman v. Inslee , 354 F. Supp. 3d 1232, 1239 (W.D. Wash. 2019). It argues that this conclusion ends the inquiry. It also argues that Cortland's state law PRA claims—that the exemption does not apply because his request did not ask for Cornelius's birthdate, and because other photographs of Cornelius exist on the internet—are in any event baseless and should be dismissed as a matter of law.
Cortland's Response includes his own Motion for Summary Judgment, seeking a declaration that RCW 42.56.250(8) is unconstitutional and void on its face. [Dkt # 16 at 2]. He argues his PRA request is speech under the First Amendment, and that the statute is an impermissible content-based regulation.
The issues are discussed in turn.
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Bagdadi v. Nazar , 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505. The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant's claim. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Once the moving party has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson , 477 U.S. at 250, 106 S.Ct. 2505. If the nonmoving party fails to establish the existence of a genuine issue of material fact, "the moving party is entitled to judgment as a matter of law." Celotex , 477 U.S. at 323-24, 106 S.Ct. 2548. There is no requirement that the moving party negate elements of the non-movant's case. Lujan v. National Wildlife Federation , 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Once the moving party has met its burden, the non-movant must then produce concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson , 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).
Cortland's core claim is that right to seek records under the PRA—more accurately, his right to obtain the records he seeks—is "speech," entitled to First Amendment protection. He claims that because the PRA permits the media to access records that he cannot, it is unconstitutional: it differentiates the result of the request based on the content2 of the speech.
Pierce County's Motion is based primarily on its claim that Courts have repeatedly, consistently established that requests for governmental documents are not speech, and they do not implicate the First Amendment.
The First Amendment prohibits any law "abridging the freedom of speech, or the press, or the right of the people to peaceably assemble, and to petition the government for a redress of grievances." U.S. Const. amend. I. Pierce County fairly proposes that Cortland's complaint really raises just one issue: whether exempting employee photographs from PRA requests by non-media requestors violates this constitutional mandate.
The County argues persuasively that it does not. It claims that federal courts are not the proper venue for adjudication of disputes over the public's access to state government agency records. See Los Angeles Police Dep't v. United Reporting Pub. Corp. , 528 U.S. 32, 34, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999). The plaintiff in Los Angeles Police Dep't challenged a California statute requiring requestors of information about recent arrestees to "declare that the information sought is for one of five prescribed purposes" and to declare "that the address will not be used directly or indirectly to sell a product or service," in order to access the records. Like Cortland, it claimed that the restriction on access to public records was facially unconstitutional. The Supreme Court disagreed:
Petitioner [the Los Angeles Police Department] contends that the section in question is not an abridgment of anyone's right to engage in speech, be it commercial or otherwise, but simply a law regulating access to information in the hands of the police department. We believe that, at least for purposes of facial invalidation, petitioner's view is correct.
Los Angeles Police Dep't , 528 U.S. at 40, 120 S.Ct. 483. It explained that "California could decide not to give out arrestee information at all without violating the First Amendment." Id ., citing Houchins v. KQED , 438 U.S. 1, 14, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978).
Houchins involved a media request for access to a jail, to conduct interviews after a prisoner suicide. In rejecting the news station's claim that it had a First Amendment right access, the Supreme Court explained that while the media has a First Amendment right to gather information, the Court has "never intimated a First Amendment guarantee of a right of access to all sources of information with government control." Houchins , 438 U.S. at 9, 98 S.Ct. 2588. Justice Stewart's concurrence explained that "[t]he First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by the government, nor do they guarantee the press any basic right of access superior to that of the public generally." Id. at 16, 98 S.Ct. 2588 (Stewart, J., concurring).
Judge Settle of this District relied on this analysis in a recent, similar PRA case, Boardman v. Inslee , 354 F. Supp. 3d 1232 (W.D. Wash. 2019). Boardman involved competing summary judgment motions on the constitutional validity of a voter initiative precluding the release of government information that could facilitate identity theft against seniors and vulnerable adults. Plaintiffs sought the information so they could communicate with those persons’ caregivers. Like Cortland, they claimed the First Amendment required the state to provide the information they sought.
Boardman catalogued these and other authorities and determined they provided "substantial support" for Defendants’ argument that "laws restricting public access to records do not implicate the First Amendment at all." 354 F. Supp. 3d at 1242. It granted the defendants’ Motion for Summary Judgment on this basis. Id. at 1252. Each of these cases is squarely on point.
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