Serv. Emps. Int'l Union Local 925, v. Univ. of Wash.

• Citation: 447 P.3d 534
• Decision Date: 05 September 2019
• Docket Number: NO. 96262-6,96262-6
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization, Respondent, v. The UNIVERSITY OF WASHINGTON, an agency of the State of Washington, Respondent, Freedom Foundation, an organization, Petitioner.
• Court: United States State Supreme Court of Washington

447 P.3d 534

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization, Respondent,

v.The UNIVERSITY OF WASHINGTON, an agency of the State of Washington, Respondent,Freedom Foundation, an organization, Petitioner.

NO. 96262-6

Supreme Court of Washington.

Oral Argument Date May 14, 2019

Filed SEPTEMBER 05, 2019

Eric Rolf Stahlfeld, Attorney at Law, 145 Sw. 155th St. Ste. 101 Burien, WA, 98166-2591, Sydney Paige Phillips, Attorney at Law, 800 Yauger Way Sw. Unit D105, Olympia, WA, 98502-8915, for Petitioner.

Paul Drachler, Kristen Laurel Kussmann, Jacob Fox Metzger, Douglas Drachler McKee & Gilbrough LLP, 1904 3rd Ave. Ste. 1030, Seattle, WA, 98101-1170, Nancy Sagor Garland, Office of the Attorney General, Uw. Ms. 359475, University of Washington Division Attorney General, Attorney at Law, 4333 Brooklyn Avenue Ne., Floor 18, Uw. Box 359475, Seattle, WA, 98195-9475, Alan D. Copsey, Office of the Attorney General, Po. Box 40100, 1125 Washington St. Se., Solicitor General Division Attorney General, Attorney at Law, 1125 Washington Street, Po. Box 40100, Olympia, WA, 98504-0100, for Respondent.

Danielle Elizabeth Franco-Malone, SCBI&L, Kelly Ann Skahan, Barnard Iglitzin & Lavitt LLP, 18 W. Mercer St. Ste. 400, Seattle, WA, 98119-3971, Amicus Curiae on behalf of Washington State Labor Council.

Edward Earl Younglove III, Younglove & Coker, PLLC, Po. Box 7846, 1800 Cooper Point Rd. Sw. # 16, Olympia, WA, 98507-7846, Amicus Curiae on behalf of Washington Federation of State Employees.

Danielle Elizabeth Franco-Malone, SCBI&L, Kelly Ann Skahan Barnard, Iglitzin & Lavitt LLP, 18 W. Mercer St. Ste. 400, Seattle, WA, 98119-3971, Amicus Curiae on behalf of Seiu Washington State Council.

Michael James Gawley, Washington Education Association, 32032 Weyerhaeuser Way S., Federal Way, WA, 98001-9687, Amicus Curiae on behalf of Washington Education Association.

Tracey A Thompson, Attorney at Law, 14675 Interurban Ave. S. Ste. 307, Tukwila, WA, 98168-4614, Amicus Curiae on behalf of Teamsters Local 117.

James Dow Constantine, Attorney at Law, Po. Box 16285, Seattle, WA, 98116-0285, Amicus Curiae on behalf of King County Washington.

Laura Elizabeth Ewan, Barnard Iglitzin and Lavitt LLP, 18 W. Mercer St. Ste. 400 Seattle, WA, 98119-3971, Amicus Curiae on behalf of Aft Washington.

STEPHENS, J.

¶1 Petitioner Freedom Foundation (Foundation) filed a public records request for records relating to union organizing by several University of Washington (UW) faculty members. The UW asked one of these faculty members to search his e-mail accounts for responsive records and, after reviewing those records, gave notice that it intended to release many of them in the absence of an injunction. Respondent Service Employees International Union 925 (Union) initiated an action in King County Superior Court to enjoin release of any union-related records, arguing they were not "public records" under chapter 42.56 RCW, Washington’s Public Records Act (PRA). The trial court granted the injunction and the Court of Appeals affirmed, applying the "scope of employment" test from Nissen v. Pierce County, 183 Wash.2d 863, 357 P.3d 45 (2015). The Foundation petitioned for review, arguing that the "scope of employment" test applies only to records created or stored on an employee’s personal device and should not be extended to records on public agencies’ e-mail servers. We agree and now reverse the Court of Appeals.

FACTS

¶2 In late December 2015, the Foundation filed a public records request with the UW’s office of public records and public meetings (OPR) seeking:

1. All documents, emails or other records created by, received by, or in the possession of University of Washington faculty/employees Amy Hagopian, Robert Wood, James Liner, or Aaron Katz that contain any of the following terms:

a. Freedom Foundation (aka., "FF," "EFF," and "the Foundation")

b. Northwest Accountability Project

c. Right-to-work (aka., "right to work," "RTW," and "R2W")

d. Friedrichs v. California Teachers Association (aka., "Friedrichs v. CTA" and "Friedrichs")

e. SEIU

f. Union

2. All emails sent by University of Washington faculty/employees Amy Hagopian, Robert Wood, James Liner, or Aaron Katz to any email address ending in "@seiu925.org" or "@uwfacultyforward.org"

3. All emails received by University of Washington faculty/employees Amy Hagopian, Robert Wood, James Liner, or Aaron Katz from any email address ending in "@seiu925.org" or "@uwfacultyforward.org"

4. All emails sent from and received by the following email address: aaup@u.washington.edu.

Clerk’s Papers (CP) at 39. The request specified that it was limited to "records from January 1, 2014 to the present." Id.

¶3 The UW contacted Professor Rob Wood, who was president of the UW chapter of the American Association of University Professors (AAUP) and a member of the Union, and asked him to search his e-mail accounts for records responsive to the Foundation’s request. He provided OPR with a large number of e-mails from both UW and non-UW accounts. After OPR reviewed those e-mails, it could not definitively determine whether they were "public records" subject to disclosure under the PRA. Following its standard records request procedure,¹ the UW notified Professor Wood that it would release 3,913 pages of e-mails unless he sought a contrary court order by April 26, 2016. Professor Wood asked OPR for copies of those e-mails, and it provided him a CD (compact disk) with a PDF (portable document format) file. According to the UW, "the vast majority of the emails [in the file were] sent to or from a University email address." CP at 209. According to Professor Wood, "some of the emails in the document were sent from or received by me at my private, non-UW email address." CP at 43.

¶4 On April 25, 2016, the Union filed a complaint for declaratory and injunctive relief, seeking to prevent the release of

personal and private emails related to union organizing; emails from the "listserver" of a private organization, the UW chapter of the [AAUP]; personal and private emails between Professor Wood and other individuals, including faculty members; and lists of faculty and members of the public, some of which include individuals’ contact information.

CP at 2.² The complaint conceded that some of the requested e-mails "probably relate to government business." CP at 7. But it argued that many other e-mails were strictly personal and that their release would chill union organizing efforts, restrain speech, and violate individuals’ privacy rights. The complaint also alleged that release of the e-mails would substantially and irreparably damage the Union and Professor Wood and that the information the Foundation sought was not of legitimate public concern.

¶5 The trial court held a preliminary injunction hearing on June 10, 2016. At that hearing, the trial court granted an injunction lasting only until July 6 "to give Mr. Woods [sic] and Counsel an opportunity to review the records in some detail and make a more precise catalog as to which ones may not be public records." CP at 482. The court characterized this relief as a "temporary injunction rather than a full-blown preliminary injunction because ... preliminary injunction relief is premature at this point in time until I get more information." CP at 484. It then issued a written temporary restraining order. CP at 267. Following entry of that order, and with Professor Wood’s help, the Union cataloged the e-mails, identified 102 pages as public records, and sent those pages to the Foundation. It placed the remaining documents into four categories: (1) "emails and documents about faculty organizing, including emails containing opinions and strategy in regard to faculty organizing, and direct communications with SEIU 925 employees," CP at 504, (2) "postings to the AAUP [UW] chapter listserve," CP at 504-05, (3) "personal emails or documents unrelated to UW business," CP at 505, and (4) "personal emails sent or received by Prof. Wood in his capacity as AAUP [UW] Chapter President and unrelated to UW business," CP at 505.

¶6 The trial court held a second preliminary injunction hearing on August 5, 2016. Applying the "scope of employment" test from Nissen, 183 Wash.2d at 876, 357 P.3d 45, the trial court granted the injunction as to all of the e-mails at issue.

¶7 On February 24, 2017, the Union filed a motion for summary judgment and a permanent injunction. The trial court entered an order granting that motion on March 27, 2017. In its written findings and conclusions, the trial court omitted any mention of Nissen and instead explained that its decision "is predicated primarily on Tiberino v. Spokane Co. Prosecutor, 103 Wn[.] App[.] 680 (2000)." CP at 693.

¶8 The Foundation appealed. Expressly adopting Nissen’ s "scope of employment" test, Division One of the Court of Appeals affirmed. Serv. Emps. Int’l Union Local 925 v. Univ. of Wash., 4 Wash. App. 2d 605, 618-20, 423 P.3d 849 (2018) ( SEIU 925 ). We granted the Foundation’s petition for review. 192 Wash.2d 1016, 438 P.3d 111 (2019).

ANALYSIS

¶9 Judicial review of agency actions under the PRA is de novo. RCW 42.56.550(3). Where, as here, the record on appeal consists solely of declarations or other documentary evidence, we stand in the same position as the trial court (which has made no credibility determinations). Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 35-36, 769 P.2d 283 (1989). Consistent with the PRA’s " ‘strongly worded mandate for broad disclosure of public records,’ " we construe the statute’s disclosure requirements liberally and its exemptions narrowly. Yakima County v. Yakima Herald-Republic, 170 Wash.2d 775, 791, 246 P.3d 768 (2011) (internal quotation marks omitted) (quoting Soter v. Cowles Publ’g Co., 162 Wash.2d 716, 731, 174 P.3d 60 (2007) (plurality opinion)).

¶10 The PRA defines a "public record," in relevant part, to include "[ (1) ] any writing [ (2) ] containing information relating to the conduct of government or the...