Hornbuckle v. Wash. State Dep't of Soc. & Health Servs.
| Decision Date | 26 September 2022 |
| Docket Number | 82675-1-I |
| Citation | 520 P.3d 456 |
| Parties | Stephen HORNBUCKLE, Respondent, v. WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Appellant. |
| Court | Washington Court of Appeals |
Michael P. Nigrey, WA State Office of the Attorney General, P.O. Box 40124, Olympia, WA, 98504-0124, for Appellant.
Jeff B. Crollard, Crollard Law Office, PLLC, 1313 E Maple St. Ste. 225 Bellingham, WA, 98225-5708, Stephen S. Hornbuckle, The Hornbuckle Firm, 12826 Se 40th Ln. Ste. 203, Bellevue, WA, 98006-4276, for Respondent.
Teal Luthy Miller, Attorney at Law, 700 Stewart St. Ste. 5220, Seattle, WA, 98101-4438, John S. Koppel, United States Department of Justice, 950 Pennsylvania Ave. Nw, Room 7264, Washington, DC, 20530, for Amicus Curiae United States.
PUBLISHED OPINION
¶1 The Washington State Department of Social and Health Services (DSHS) appeals a superior court order finding that DSHS violated the Public Records Act (PRA) by withholding documents related to a nursing facility investigation without providing a qualified exemption. DSHS, joined by amicus curiae United States, argues that 42 U.S.C. § 1306 provides an "other statute" exemption to the PRA. We disagree and affirm the trial court's summary judgment order. However, we remand for entry of findings and conclusions for the award of attorney fees below and to determine the amount of attorney fees on appeal, as well as consideration of respondent's per day penalty request.
¶2 In June 2017, Mavis Downing, a nursing facility surveyor for DSHS, conducted a complaint investigation related to the care and treatment of Sinisa Taimi while she was a resident at Washington Care Center, a Medicare/Medicaid certified nursing facility. That investigation was a joint federal and state investigation conducted for the purpose of enforcing both federal and state law.
¶3 The joint endeavor between the federal and state government began in 19941 when the federal government, through the Secretary of Health and Human Services (HHS), entered into an "1864 agreement" (Agreement) with the State of Washington to carry out the provisions of the Social Security Act.2 HHS administers the Medicare program through the Centers for Medicare and Medicaid Services (CMS). The parties stipulate that DSHS and CMS are in a contractual relationship under the Agreement. CMS provides Medicare and Medicaid funding to Washington State, and in turn DSHS "agrees to conduct surveys of nursing homes to ensure compliance with regulations governing nursing homes that receive federal funding." This includes conducting investigations into allegations of nursing home resident neglect and abuse. 42 U.S.C. § 1395i-3(g)(1)(A), (C).
¶4 Attorney Stephen Hornbuckle represents the personal representative of Taimi's estate. On March 30, 2020, on behalf of his client, Hornbuckle made a PRA request seeking documents related to Downing's investigation.3 Hornbuckle requested "copies of surveyor notes, investigation findings, investigation working papers, reports, SOD[/]POC,4 recommendations, and all other records gathered or created during the course of the survey."
¶5 One week later, DSHS responded to Hornbuckle's records request. DSHS provided some of the responsive documents, but withheld investigative notes, emails and other written documents, including investigator working papers. DSHS explained that federal statute 42 C.F.R. § 488.325 lists the only documents that can be released and prohibits a state agency from releasing other records, including working papers. The letter continued:
The federal Centers for Medicare and Medicaid Services (CMS) controls disclosure by state agencies of Medicare certification documents, because these documents were created or obtained by DSHS staff while acting on behalf of the federal government. The only Medicare certification documents that DSHS is allowed to release are listed in 42 CFR § 488.325. This regulation authorizes DSHS to release statements of deficiencies and plans of correction, but it does not authorize it to produce, under the Public Records Act, surveyor or complaint investigator working papers. Requests for Medicare survey and certification documents that cannot be produced under 42 CFR § 488.325 must be treated in accordance with the requirements of 45 (CFR) §§ 2.1 – 2.6.
The letter instructed Hornbuckle that he could submit a Federal Freedom of Information Act (FOIA) request to CMS pursuant to 45 C.F.R. pt. 5. Hornbuckle filed a FOIA request directed at CMS and obtained some responsive records.
¶6 On April 10, 2020 Hornbuckle sued DSHS, alleging that DSHS violated the PRA by withholding requested documents. In its answer, DSHS maintained that the requested records were not public records as defined by RCW 42.56.010(3)5 , but were instead federal documents governed by federal law and federal regulations that limited DSHS's authority to disclose them.
¶7 Both parties moved for summary judgment. The court granted Hornbuckle's motion, finding that DSHS violated the PRA by failing to produce surveyor working papers without a valid exemption under the PRA. The court ordered DSHS to produce the documents responsive to the request at issue by May 24, 2021. DSHS appeals and amicus curiae United States joins DSHS.
¶8 Though not raised by any party as an issue, DSHS based its PRA exemption below on different authority than it does now on appeal. DSHS had relied on 42 C.F.R. 488, 45 C.F.R. 2.2, and 45 C.F.R. 2.3. On appeal, DSHS and amicus rely on 42 U.S.C. § 1306, which was not addressed below. This does not prevent our review. See Progressive Animal Welfare Soc. v. Univ. of Washington, 125 Wash.2d 243, 253, 884 P.2d 592 (1994) ().
¶9 Washington voters enacted the PRA through a 1972 citizen's initiative and it continues to function as a "strongly worded mandate for broad disclosure of public records." Freedom Found. v. Gregoire, 178 Wash.2d 686, 695, 310 P.3d 1252 (2013). The purpose of the PRA is to "foster governmental transparency and accountability by making public records available to Washington's citizens." Doe ex rel. Roe v. Washington State Patrol, 185 Wash.2d 363, 371, 374 P.3d 63 (2016). The legislature has directed that in undertaking judicial review of PRA claims, "[c]ourts shall take into account the policy of [the PRA] that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others." RCW 42.56.550(3).
¶10 State agencies are required to disclose public records when requested "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." RCW 42.56.070(1). The "other statute" exemption "applies only if that statute explicitly identifies an exemption; the PRA does not allow a court to imply such an exemption." White v. Clark County, 188 Wash. App. 622, 631, 354 P.3d 38 (2015). Any exemption is narrowly construed to "assure that the public interest will be fully protected." RCW 42.56.030. Agencies carry the burden to prove that a qualified exemption applies to a withheld record. RCW 42.56.550(1) ; Neighborhood All. of Spokane County. v. Spokane County, 172 Wash.2d 702, 715, 261 P.3d 119 (2011).
¶11 We review agency actions de novo, including whether the agency properly applied an "other statute" as the basis for withholding a record. Doe ex rel. Roe, 185 Wash.2d at 370-71, 374 P.3d 63. Where we review a grant of summary judgment we also engage in de novo review, engaging in the same inquiry as the trial court.
Neighborhood All. of Spokane County, 172 Wash.2d at 715, 261 P.3d 119. 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).
¶12 DSHS argues that the trial court erred in concluding that DSHS violated the PRA when it denied Hornbuckle's records request. DSHS argues that it properly withheld records because 42 U.S.C. § 1306 qualifies as an "other statute" that prohibits disclosure of federal records created by DSHS as an HHS contractor. The United States agrees with DSHS. We disagree.
¶13 RCW 42.56.070(1) ’s "other statute" exemption provision is not limited to state statutes, but may include relevant federal statutes and regulations. Freedom Found. v. Washington State Dep't of Transp., Div. of Washington State Ferries, 168 Wash. App. 278, 289, 276 P.3d 341 (2012) ; Ameriquest Mortg. Co. v. Washington State Off. of Att'y. Gen., 170 Wash.2d 418, 440, 241 P.3d 1245 (2010). The federal statute at issue here, 42 U.S.C. § 1306(a)(1), states in part:
¶14 The parties disagree whether Downing acted as an employee of HHS under 42 U.S.C. § 1306(a)(1) when she conducted an investigation that served both the State and HHS. We need not resolve this question because even assuming...
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