Hearst Corp. v. Hoppe, 45379

Decision Date01 June 1978
Docket NumberNo. 45379,45379
Citation90 Wn.2d 123,580 P.2d 246
Parties, 3 Media L. Rep. 2399 HEARST CORPORATION, a Foreign Corporation, doing business as the Seattle Post-Intelligencer, Respondent, v. Harley HOPPE, as King County Assessor, Appellant, Harley Hoppe, Individually and King County, Washington, a Municipal Corporation, Defendants.
CourtWashington Supreme Court

Russell A. Austin, Jr., Sp. Deputy Pros. Atty., for appellant Harley Hoppe, as King County Assessor.

Raymond B. Ferguson, Asst. Pros. Atty., Seattle, Kargianis & Austin, Seattle, for defendants Harley Hoppe, individually King County, Washington, a municipal corp.

Davis, Wright, Todd, Riese & Jones, P. Cameron Devore, Marshall J. Nelson, Seattle, for amici Allied Daily Newspapers.

Felix & Zimmar, Inc., P. S., Jennings P. Felix, Seattle, for amici Washington Association of County Officials & Washington Association of County Assessors.

Bendich, Stobaugh & Strong, Stepehen K. Strong, David F. Stobauch, Seattle, for amici American Civil Liberties Union of Washington.

Slade Gorton, Atty. Gen., Richard H. Holmquist, Senior Asst., Robert E. Schillberg, Snohomish County Pros. Atty., Elmer E. Johnston, Jr., Deputy Pros. Atty., Everett, Paul F. Moon, Research Atty., for amici State of Washington Department of Revenue.

UTTER, Associate Justice.

The Seattle Post-Intelligencer, respondent herein, sought under certain relevant statutes disclosure of information contained in records of the King County Assessor's office. The assessor refused to disclose the information and respondent brought suit in superior court against the assessor to force disclosure of the information. The superior court judge ordered the assessor to disclose the material sought, with minor exceptions. Appellant assessor then sought from the Court of Appeals an order staying the order of the superior court pending review by this court, which order was granted. On appeal we affirm the order of the trial court granting in substantial part respondent's requested relief.

The legal issues in this case concern the Washington public disclosure act, RCW 42.17, and raise five questions relating to various provisions of that act and other related legislation. (1) What is the appropriate standard of judicial review? (2) Does administrative inconvenience or difficulty limit the substantive disclosure requirements of the act? (3) Has appellant proved the folios sought are exempt in their entirety under RCW 42.17.310(1)(i), the exception for intra-agency memorandum? (4) Has appellant proved the folios are exempt in their entirety under RCW 42.17.310(1)(c), the exemption for material, the disclosure of which would violate the taxpayers' right to privacy? And, (5) do the provisions of RCW 84.40.020 interpret or amend the provisions of the public disclosure act?

This controversy began when the Seattle Post-Intelligencer, in an ongoing investigation, sought to determine whether Mr. Hoppe, the King County Assessor, gave special favors to those who contributed to his campaign. It had taken the list of contributors to his election committee filed with the Public Disclosure Commission, and then attempted to match that list with the personal and real property records of those individuals in the assessor's office. Respondent wrote on two occasions asking for access to specific folios 1 relating to real property accounts. That access was denied, and respondent initiated suit.

Respondent alleged in its complaint filed January 30, 1978, that, contrary to legal advice by the King County Prosecuting Attorney, appellant Hoppe refused to give respondent an opportunity to inspect or copy the public portions of the folios and records. It then asked for an order to inspect and copy the records requested and for costs, including reasonable attorneys' fees, and damages of $25 per day after January 10, 1978, for each folio and record which they were denied the right to inspect. See RCW 42.17.340(3).

Respondent obtained an order to show cause requiring appellant to demonstrate why inspection or copying of public records should not be allowed. Following a hearing on February 2, 1978, the court found the records involved were public records and that respondent was entitled, as a matter of law, to promptly inspect or copy them subject to appellant having the burden of proving that all or a portion of the records were specifically exempt by law from public disclosure. The court then ordered appellant to produce the public records sought by respondent and further ordered that appellant could delete from those records the portions thereof which he claimed were exempt. These records were submitted with deletions done in a manner consistent with appellant's claimed position. The numbers written on the exhibit refer to a "key" attached to the exhibit which define the statutory exemptions claimed by appellant. See Appendix. This was the first time appellant had given his specific reason for withholding the public records. RCW 42.17.310(4).

The superior court on February 24, 1978, specifically found that respondent did not seek and has not sought any disclosure of income data on any properties, depreciation figures on commercial properties, or site plans which show floor plans of any structures, data unrelated to value or assessment, information pertaining to access to any premises or to security measures or devices on any premises. It found the records disclosable, and ordered them released with the exception of specified exempt material deleted by the court. It further specifically reserved ruling on all other proceedings including, but not limited to, appellant's motion to dismiss defendant Hoppe as an individual and respondent's claim for damages and attorneys' fees.

The Washington public disclosure act is a strongly-worded mandate for broad disclosure of public records. It states that, "mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, 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." RCW 42.17.010(11). It further declares that "(t)he provisions of this chapter shall be liberally construed to promote . . . full access to public records so as to assure continuing public confidence (in) . . . governmental processes, and so as to assure that the public interest will be fully protected." Declarations of policy in an act, although without operative force in and of themselves, serve as an important guide in determining the intended effect of the operative sections. Hartman v. State Game Comm'n, 85 Wash.2d 176, 179, 532 P.2d 614 (1975). Declarations of policy requiring liberal construction are a command that the coverage of an act's provisions be liberally construed and that its exceptions be narrowly confined. Mead School Dist. 354 v. Mead Educ. Ass'n, 85 Wash.2d 140, 145, 530 P.2d 302 (1975).

The expansive disclosure requirement as established by the language of the act is further solidified by reference to the statement in the voters pamphlet explaining the act when it was Initiative 276: "The initiative would require all . . . 'public records' of both state and local agencies to be made available for public inspection and copying by any person asking to see or copy a particular record . . ." Further, the statement expressly provided that the law "makes all public records and documents in state and local agencies available for public inspection and copying" except those exempted to protect individual privacy and to safeguard essential governmental functions. Official Voters Pamphlet, 1972 General Election, November 7, 1972, at pages 10, 108.

The state act closely parallels the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1970), as amended, (Supp. V, 1975), and thus judicial interpretations of that act are particularly helpful in construing our own. The Supreme Court in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136-37, 95 S.Ct. 1504, 1509-1510, 44 L.Ed.2d 29 (1975), has observed that the FOIA "seeks 'to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.' . . . virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act's nine exemptions. . . . Finally, and more comprehensively, all 'identifiable records' must be made available to a member of the public on demand (unless exempted)." The federal courts have also recognized a mandate to construe the FOIA broadly, and to construe the exemptions narrowly. See, e. g., Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); Theriault v. United States, 503 F.2d 390 (9th Cir. 1974).

Despite the close parallel between the state act and the FOIA, the state act is more severe than the federal act in many areas. It provides attorney's fees to the successful party in the event legal action need be commenced to acquire records desired and costs are also recoverable against the agency up to $25 per day for each day the documents are wrongfully withheld. RCW 42.17.340(3). The FOIA does not have a similar penalty provision.

I

What is the appropriate standard of judicial review? Appellant asserts that he is invested with a public trust to protect the confidentiality of private information supplied by or obtained from the taxpayer. The statutes, he states, place it within his province to determine what must be disclosed and his exercise of discretion may not be disturbed by the judiciary unless it is arbitrary and capricious.

Agencies are afforded some...

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