SEIU Healthcare 775NW v. State

• Decision Date: 12 April 2016
• Docket Number: No. 46797–6–II.,46797–6–II.
• Citation: 193 Wash.App. 377,377 P.3d 214
• Court: Washington Court of Appeals
• Parties: SEIU HEALTHCARE 775NW, a labor organization, Appellant/Cross–Respondent, v. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent, and Freedom Foundation, Respondent/Cross–Appellant.

193 Wash.App. 377

377 P.3d 214

SEIU HEALTHCARE 775NW, a labor organization, Appellant/Cross–Respondent

v.STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, RespondentandFreedom Foundation, Respondent/Cross–Appellant.

No. 46797–6–II.

Court of Appeals of Washington, Division 2.

April 12, 2016.

Morgan B. Damerow, Atty. General Office/L & P Division, Olympia, WA, for Respondent.

Dmitri L. Iglitzin, Jennifer L. Robbins, Schwerin Campbell Barnard Iglitzin & Lav, Seattle, WA, for Appellant/Cross–Respondent.

Michele Lynn Earl–Hubbard, Allied Law Group LLC, Seattle, WA, James Abernathy, David Morgan Steven Dewhirst, Attorney at Law, Olympia, WA, for Respondent/Cross–Appellant.

Eric Stahl, Davis Wright Tremaine LLP, Seattle, WA, Amicus Curiae on behalf of Allied Daily Newspaper of Washington.

Eric Stahl, Davis Wright Tremaine LLP, Seattle, WA, Amicus Curiae on behalf of Washington COAlition for Open Government.

MAXA

, J.

¶ 1 The Freedom Foundation (the Foundation) submitted a Public Records Act (PRA)¹ request to the Department of Social and Health Services (DSHS) seeking disclosure of lists of Washington individual home care providers (individual providers) who provide personal care services to functionally disabled persons. The Foundation's stated purpose in requesting the records was to attempt to correspond with the individual providers and notify them of their constitutional right to refrain from union membership and fee payments.

¶ 2 SEIU Healthcare 775 NW (SEIU), the labor union representative of individual providers, obtained a temporary restraining order (TRO) and requested a preliminary injunction enjoining DSHS from releasing the lists of individual providers under the commercial purposes prohibition of RCW 42.56.070(9)

. SEIU also asserted that the exemption for personal information of welfare recipients in

RCW 42.56.230(1)

applied because the Foundation could use the lists to discover the identities of the Medicaid beneficiaries who received care from the individual providers. The trial court consolidated the preliminary injunction hearing with a permanent injunction trial and refused to enjoin disclosure of the lists, ruling that SEIU had failed to establish that either the prohibition or the exemption applied. SEIU appeals.²

¶ 3 We hold that (1) the trial court did not err under CR 65(a)(2)

in combining the preliminary injunction hearing with a permanent injunction trial on the merits, (2) RCW 42.56.070(9) does not preclude DSHS from disclosing the lists of individual providers because the Foundation did not request the lists for commercial purposes, and (3) RCW 42.56.230(1) does not preclude DSHS from disclosing the lists of individual providers because the lists are not personal information maintained in the files of welfare recipients. We also hold that the Foundation is not entitled to attorney fees for dissolving the TRO. Accordingly, we affirm the trial court's denial of SEIU's request for preliminary and permanent injunctive relief.

FACTS

¶ 4 SEIU is a labor union and the exclusive bargaining representative of all individual providers in Washington. RCW 74.39A.240(3)

defines “individual provider” as a person who has contracted with DSHS to provide personal care or respite care services to functionally disabled persons under a variety of programs, including Medicaid.

¶ 5 The Foundation is a Washington-based organization focused on various economic issues. One of the Foundation's central purposes is to educate public employees, including the individual providers, about their constitutional rights to drop their membership in and payment of fees to public sector unions. For example, the Foundation places targeted advertisements on social media to explain the rights of public sector union members.

The Foundation's PRA Request

¶ 6 On July 2, 2014, the Foundation submitted a PRA request to DSHS, which included a request for:

5. All documents, emails, memos or other forms of communication between DSHS and [SEIU] ... for the time period [of] June 25th 2014 to July 2nd 2014.

6. The business/work contact information (including e-mail addresses) for all in-home care providers (individual providers) and translators (language access providers).

Clerk's Papers (CP) at 45–46.

¶ 7 DSHS determined that an exemption prevented disclosure of individual providers' contact information but that it was required to disclose the names of individual providers. DSHS identified two lists that were responsive to the PRA requests: one with the names of approximately 30,968 individual providers and one contained in an email exchange with the names of 95 additional individual providers. DSHS could not identify an exemption that would preclude the disclosure of these lists.

¶ 8 DSHS notified SEIU of the Foundation's PRA request and informed SEIU that DSHS would release the records absent a court order. DSHS sent the Foundation a first installment of records responsive to the request that did not include the names of the individual providers. SEIU then notified DSHS that SEIU intended to seek an injunction prohibiting DSHS from releasing a second installment of records.

Complaint and TRO

¶ 9 On October 1, SEIU filed a complaint for declaratory and injunctive relief against DSHS and the Foundation requesting a preliminary and permanent injunction under RCW 42.56.540

prohibiting DSHS from releasing the lists of individual providers. SEIU then filed a motion for a TRO to prevent the release of the lists.

¶ 10 The trial court heard oral argument on the TRO motion on October 3. SEIU argued that a TRO was necessary because (1) disclosing the lists was prohibited under RCW 42.56.070(9)

's “commercial purposes” provision; and (2) releasing the identity of individual providers would violate RCW 42.56.230(1), which exempts from disclosure personal information regarding welfare recipients.³

¶ 11 The trial court granted SEIU's motion for a TRO, which enjoined DSHS from disclosing the list of individual providers requested by the Foundation until the matter could be heard at a preliminary injunction hearing on October 16. The trial court also informed the parties that it was inclined to consolidate the preliminary injunction hearing with a permanent injunction hearing pursuant to CR 65

, but that it would need to read the parties' briefing first.

SEIU Discovery Requests

¶ 12 SEIU notified the Foundation under CR 30(b)(6)

of its intent to depose a person or persons from the Foundation with knowledge of several specific topics and filed a motion for leave to take the CR 30(b)(6) deposition on an expedited basis. SEIU also served the Foundation with two interrogatories and eight requests for production. The Foundation filed a motion for a protective order prohibiting SEIU's requested deposition and any other written discovery because the subjects listed by SEIU in its deposition notice and written discovery were beyond the scope of relevant issues.

¶ 13 The Foundation also submitted a declaration from Maxford Nelson, a policy analyst for the Foundation. His declaration stated that (1) “[t]he names of the individual providers on the requested public records will not be used for commercial purposes,” (2) “Freedom Foundation will not attempt to solicit money or support from the individual providers,” (3) “ Freedom Foundation intends to use the list to educate individual providers about their constitutional rights,” and (4) “Freedom Foundation does not seek these records on behalf of any other individual or entity.” CP at 802–03.⁴

¶ 14 On October 10, the trial court denied SEIU's request to take a CR 30(b)(6)

deposition on an expedited basis and granted in part and denied in part the Foundation's motion for a protective order. Specifically, the trial court ruled that SEIU would not be permitted to take a CR 30(b)(6) deposition but that the Foundation would be required to provide written answers to the first three topics of the CR 30(b)(6) deposition notice. Those three topics were:

1. All use(s) Freedom Foundation intends to make of the list of Individual Providers it has requested from the Department of Social and Health Services, State of Washington (“DSHS”) pursuant to Washington's Public Records Act, RCW 42.56.

2. The identity of any person on whose behalf Freedom Foundation has requested the list of Individual Providers from DSHS.

3. Contacts Freedom Foundation has initiated with any Individual Provider(s) since January 1, 2011, and the nature and content of all communications between the Freedom Foundation and Individual Providers, [ ... ] limited to any efforts Freedom Foundation has made to solicit funds from Individual Providers.

CP at 89.

¶ 15 At the October 10 discovery hearing, the trial court again hinted that it was planning on consolidating the preliminary injunction hearing with a permanent injunction hearing.

¶ 16 The Foundation provided SEIU with its discovery responses on October 14. Regarding its intended use of the lists of individual providers, the Foundation's response stated: “Freedom Foundation will seek to correspond with the Individual Providers, notifying them of their constitutional right to refrain from union membership and fee payments pursuant to the U.S. Supreme Court decision in Harris v. Quinn .”⁵ CP at 232. The Foundation further stated that the correspondence would direct individual providers to a website containing information and forms related to opting out of membership with SEIU, but no link to the Foundation's website. The response concluded, “This is the sole use to which the list of Individual Providers will be put by Freedom Foundation.” CP at 233. Another response stated that the Foundation had not requested the list of individual providers on behalf of any other person or entity.⁶

¶ 17 The Foundation also submitted a fourth declaration from Nelson. Nelson stated that he had drafted a letter to be sent to individual providers notifying them of “their altered legal rights following the U.S. Supreme Court decision in ...