Freedom Found. v. Wash. State Dep't of Transp.

• Decision Date: 10 May 2012
• Docket Number: No. 41198–9–II.,41198–9–II.
• Parties: FREEDOM FOUNDATION, a Washington nonprofit corporation, Appellant, v. WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, DIVISION OF WASHINGTON STATE FERRIES, Respondent.
• Court: Washington Court of Appeals

168 Wash.App. 278

276 P.3d 341

FREEDOM FOUNDATION, a Washington nonprofit corporation, Appellant,

v.WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, DIVISION OF WASHINGTON STATE FERRIES, Respondent.

No. 41198–9–II.

Court of Appeals of Washington,

Division 2.

May 10, 2012.

Michael J. Reitz, Attorney at Law, Olympia, WA, for Appellant.

Lawrence Scott Lockwood, Douglas D. Shaftel, Office of the Atty. General, Olympia, WA, for Respondent.

William John Crittenden, Patrick Denis Brown, Attorneys at Law, Seattle, WA, amicus counsel for of Washington Coalition for Open Go.

VAN DEREN, J.

[168 Wash.App. 281]¶ 1 Following a ferry accident in Seattle, Freedom Foundation¹ FILED A PUBLIC Records request with washington state Ferries/ Washington State Department of Transportation (WSDOT) seeking accident investigation reports. ² WSDOT provided reports, including that mandatory drug and alcohol testing of the ferry's crew members was conducted, but it redacted individual test results and other information. Freedom Foundation filed a chapter 42.56 RCW Public Records Act (PRA) suit seeking disclosure of unredacted records. The trial court granted WSDOT's summary judgment motion denying disclosure of the requested records. The primary contention on appeal concerns whether the trial court properly ruled that WSDOT properly redacted the crew's drug and alcohol test results in compliance with a federal regulation, 49 C.F.R. § 40.321 (2006)³ directing marine employers to keep test results confidential, because that regulation qualifies as an “other statute” exemption under RCW 42.56.070 (1). WSDOT concedes on appeal that its initial redactions were overbroad.

¶ 2 We hold that 49 C.F.R. § 40.321 and its enabling federal statute qualify as an “other statute” exemption under RCW 42.56.070(1), and that the trial court properly granted summary judgment to WSDOT. But we accept WSDOT's concession that its initial redactions were overbroad and remand for determination of costs, fees, and daily penalties and award the Foundation proportional attorney fees on appeal.

FACTS

¶ 3 The material facts are not in dispute. On August 30, 2009, the Washington State ferry, M/V Wenatchee, ran into the Coleman Dock at Pier 52 in Seattle in heavy fog with enough force to cause moderate damage to both the dock and the vessel. The impact also caused a ferry passenger to fall to the deck and to suffer facial injury. Washington State Ferries, as a subdivision of WSDOT, and a marine employer subject to United States Coast Guard (USCG) regulations, initiated mandatory chemical testing of its employees directly involved in the allision ⁴ incident.⁵ The drug and alcohol test results were documented on the appropriate USCG and United States Department of Transportation (USDOT) forms in compliance with USCG regulations. See46 C.F.R. § 4.06–60 (2005).

¶ 4 The Foundation submitted two separate requests for records under the PRA for records related to the incident, and WSDOT released 10 test-related form documents with drug and alcohol test results redacted. These redacted forms are at issue in this case.

¶ 5 WSDOT received Foundation's first public records request on August 31, 2009. WSDOT acknowledged the request within five days on September 1, 2009, and designated the matter as number PDR–09–0968 (Foundation's First Request). WSDOT identified potentially responsive records and reviewed them for confidential or otherwise exempt information with assistance of legal counsel before releasing them to Foundation on November 5, 2009.⁶

¶ 6 In the records produced in response to the Foundation's First Request, WSDOT included a copy of USCG 2692B, a form used by marine employers when reporting drug and alcohol test results after a serious marine incident. See46 C.F.R. § 4.06–60. The USCG 2692B was redactedin accord with WSDOT's understanding of USCG requirements.⁷

¶ 7 The Foundation objected to the redactions to USCG 2692B in a letter that WSDOT received on November 19, 2009. WSDOT again consulted with legal counsel and, in a letter dated November 24, 2009, notified the Foundation that it would not release the redacted information.

¶ 8 The Foundation asked the State Attorney General's Office (AGO), under RCW 42.56.530, to review WSDOT's redactions to USCG 2692B.⁸ The AGO issued a letter opinion to the Foundation concluding that federal law requires WSDOT to redact individual alcohol test results from the form and, thus, the agency properly determined that the test results are exempt from public disclosure. And WSDOT learned that the USCG had confirmed that drug and alcohol test information had to be redacted from USCG 2692B before the form was released to the public.

¶ 9 Nevertheless, after further consultation with its legal counsel, WSDOT reconsidered the scope of its redactions and released a revised redacted version of the USCG 2692B. Although redactions to the alcohol test results remained, WSDOT removed redactions regarding other information, such as the type of tissue or urine sample that was provided and how soon after the incident those samples were provided.⁹

[168 Wash.App. 285]¶ 10 The Foundation made a second records request on November 19, 2009, which WSDOT identified as PDR–09–1322 (Foundation's Second Request). WSDOT's December 22, 2009 response to the Foundation's Second Request included the same USCG 2692B form that had already been provided to the Foundation's First Request and had the same information redacted as in WSDOT's original (Nov. 9, 2009) production. In addition, WSDOT released seven USDOT alcohol test forms and two pages containing drug and alcohol test summary information WSDOT acquired as part of the USCG's post-incident investigation. The initial redactions to these records (the 10 forms) were similar to the initial redactions made to USCG 2692B.

¶ 11 On April 16, 2010, the Foundation filed the present action for disclosure of public records in Thurston County Superior Court. Both the Foundation and WSDOT filed for summary judgment. The trial court denied the Foundation's motion for summary judgment and granted summary judgment in favor of WSDOT, finding that 49 C.F.R. § 40.321 prohibits WSDOT from releasing drug and alcohol test records ¹⁰, and that the federal regulation falls within the “other statute” exemption in RCW 42.56.070(1). The Foundation appealed.

¶ 12 On September 30, 2010, two weeks after the Foundation filed its appeal, WSDOT supplied the Foundation with new copies of the “10 forms” that the agency had previously produced on December 22, 2009, but with fewer redactions. ¹¹ In its response to the Foundation's appeal, WSDOT admits that its prior redactions were overbroad. WSDOT continues to withhold the individual test results of the Wenatchee crew members, but the documents WSDOT produced on September 30, 2011, supplied information about the tested employees' identities, the testing circumstances, and the testing methodologies. WSDOT asks that we remand for a determination of penalties, costs, and fees for the time period of November 5, 2009, until September 30, 2010.

ANALYSIS

¶ 13 Foundation contends that the trial court erred in ruling that 49 C.F.R. § 40.321 falls within the “other statute” exemption of RCW 42.56.070(1). We disagree.

I. Standard of Review

¶ 14 Our review of agency actions under the PRA is de novo. Neighborhood Alliance of Spokane Cnty. v. Cnty. of Spokane, 172 Wash.2d 702, 715, 261 P.3d 119 (2011) (citing RCW 42.56.550(3)). We review interpretations of law de novo. Neighborhood Alliance, 172 Wash.2d at 715, 261 P.3d 119. We review grants of summary judgment de novo, and we engage in the same inquiry as the trial court. Neighborhood Alliance, 172 Wash.2d at 715, 261 P.3d 119. A public records case may be decided based on affidavits alone. O'Neill v. City of Shoreline, 170 Wash.2d 138, 153–54, 240 P.3d 1149 (2010). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Here, there are no material facts in dispute.

II. Public Records Act Statutory Exemptions

¶ 15 “The PRA is a strongly worded mandate for broad disclosure of public records.” Neighborhood Alliance, 172 Wash.2d at 714, 261 P.3d 119. The PRA “stands for the proposition that ‘full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.’ ” Neighborhood Alliance, 172 Wash.2d at 714–15, 261 P.3d 119. (quoting Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.2d 243, 251, 884 P.2d 592 (1994); and RCW 42.17A.001(11)). The PRA requires agencies to disclose any public record on request unless the record falls within a specific, enumerated exemption. Neighborhood Alliance, 172 Wash.2d at 715, 261 P.3d 119 (citing RCW 42.56.070(1)). RCW 42.56.070(1) provides in relevant part: “Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions [listed in] this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records.” (Emphasis added.) See Ameriquest Mortg. Co. v. Wash. State Office of Atty. Gen., 170 Wash.2d 418, 440, 241 P.3d 1245 (2010) ( “[T]the PRA's ‘other statute’ exemption allows for a separate statute to preclude disclosure of ‘specific information’ or entire ‘records'. RCW 42.56.070(1).”).

A. “Other Statute” Exemption under RCW 42.56.070(1).

¶ 16 The primary legal dispute here is whether a federal regulation, 49 C.F.R. § 40.321, which provides for confidentiality of drug and alcohol testing results, can prohibit disclosing public employee test results sought through a Washington PRA request, test results that address public employee job performance of interest to Washington's citizens.

¶ 17 We rely on our Supreme Court's resolution of this issue in...