Serv. Emps. Int'l Union Local 925, v. State

• Citation: 450 P.3d 1181
• Decision Date: 31 October 2019
• Docket Number: NO. 96578-1,96578-1
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization, Petitioner, v. State of Washington, DEPARTMENT OF EARLY LEARNING, a state agency, and Evergreen Freedom Foundation, a nonprofit corporation, Respondents.
• Court: United States State Supreme Court of Washington

450 P.3d 1181

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

v.State of Washington, DEPARTMENT OF EARLY LEARNING, a state agency, and Evergreen Freedom Foundation, a nonprofit corporation, Respondents.

NO. 96578-1

Supreme Court of Washington.

Argued June 13, 2019

Filed OCTOBER 31, 2019

Robert H. Lavitt, Melissa Jill Greenberg, Barnard Iglitzin & Lavitt LLP, 18 W. Mercer Street, Suite 400, Seattle, WA, 98119-3971, for Petitioner.

Caleb Jon Fan Vandenbos, VANDENBOS LAW, Po Box 831, Chehalis, WA, 98532-0831, Labor & Personnel A.G. Office, Attorney at Law, 7141 Cleanwater Lane Sw, Po Box 40145, Olympia, WA, 98504-0145, Margaret C. Mclean, Susan Sackett Danpullo, Office of the Attorney General, 7141 Cleanwater Dr. Sw, Po Box 40145, Olympia, WA, 98504-0145, for Respondents.

STEPHENS, J.

¶ 1 Respondent Evergreen Freedom Foundation (Foundation) filed a Public Records Act (PRA), chapter 42.56 RCW, request for the names and addresses of individuals who provide subsidized childcare under Washington’s Working Connections Child Care program (WCCC). After the Foundation filed its request but before any records were released, voters passed an initiative exempting those names and addresses from PRA coverage and prohibiting agencies from releasing them. The question presented in this case is whether that initiative bars release even though it did not take effect until after the Foundation made its public records request. We hold that the answer is yes.

FACTS

¶ 2 The Department of Early Learning (Department) administers the WCCC, which subsidizes childcare for low income families. The subsidies fund childcare in both commercial and private residential settings, but this case involves only the latter. Providers in private residential settings are called "family child care providers" and may be either licensed or license exempt. Clerk’s Papers (CP) at 904. State law defines family childcare providers as public employees for the purposes of collective bargaining, RCW 41.56.028(1), (3), and petitioner Service Employees International Union Local 925 (SEIU 925) represents these workers.

¶ 3 On November 2, 2016, the Foundation submitted a PRA request to the Department seeking the following:

1. The first name, last name, work mailing address, and work email address of all licensed family child care providers, as defined by RCW 41.56.030(7).

2. The first name, last name, work mailing address, and work email address of all license-exempt family child care providers, as defined by RCW 41.56.030(7).

CP at 909.

¶ 4 The Department informed SEIU 925 that, in the absence of a court injunction, it would release all the requested information to the Foundation on November 22, 2016. On November 8, 2016, Washington voters approved Initiative 1501 (I-1501), which "prohibit[s] the release of certain public records that could facilitate identity theft and other financial crimes against seniors and vulnerable individuals." Id. at 299. Two of the initiative’s provisions address the release of records responsive to the Foundation’s PRA request. One provision, now codified at RCW 43.17.410(1), provides that "neither the state nor any of its agencies shall release sensitive personal information of vulnerable individuals or sensitive personal information of in-home caregivers for vulnerable populations, as those terms are defined in RCW 42.56.640." The other, now codified at RCW 42.56.640(1) in the PRA, provides that "[s]ensitive personal information of vulnerable individuals and sensitive personal information of in-home caregivers for vulnerable populations is exempt from inspection and copying under this chapter." The new law defines " ‘[i]n-home caregivers for vulnerable populations’ " to include WCCC "family child care providers." RCW 42.56.640(2)(a). It defines " ‘[s]ensitive personal information’ " as "names, addresses, GPS [global positioning system] coordinates, telephone numbers, email addresses, social security numbers, driver’s license numbers, or other personally identifying information." RCW 42.56.640(2)(b) (second alteration in original). The initiative took effect on December 8, 2016. LAWS OF 2017, ch. 4 (I-1501).

Procedural History

¶ 5 Three weeks before the new law took effect, SEIU 925 filed a complaint for declaratory and injunctive relief barring the Department from releasing the records. It sought a temporary restraining order and a preliminary injunction. The parties agreed to extend any deadline for release until after the court could rule on the motion for a preliminary injunction. The trial court issued its ruling December 9, 2016, one day after I-1501 took effect. It denied injunctive relief but ordered the Department to delay release so SEIU 925 could appeal the ruling. Division Two granted the Department’s motion for an emergency injunction, pending the appellate court’s final decision. That court affirmed on September 18, 2018. Serv. Emps. Int’l Union Local 925 v. Dep’t of Early Learning, No. 49726-3-II, 2018 WL 4455865 (Wash. Ct. App. Sept. 18, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2% 2049726-3II% 20Unpublished% 20Opinion.pdf.

¶ 6 In the Court of Appeals, SEIU 925 argued that the trial court erred by failing to apply I-1501 (specifically, the provisions later codified at RCW 43.17.410(1) and RCW 42.56.640 ) because that law barred release of the requested records by the time the court ruled on the motion for a preliminary injunction. Id. at 8. Division Two rejected that argument, holding that the preliminary injunction was governed by the law in effect at the time of the Foundation’s request and that I-1501 did not meet any of the criteria necessary to establish retroactive application. Id. at 10-15. It reasoned that, absent retroactivity, the law governing a disputed public records request is always "the law in existence at the time the request was made." Id. at 13 (citing John Doe A v. Wash. State Patrol, 185 Wash.2d 363, 375 n.2, 374 P.3d 63 (2016) ). Citing only Dragonslayer, Inc. v. Washington State Gambling Commission, 139 Wash. App. 433, 449, 161 P.3d 428 (2007), the court also concluded that a PRA request creates a "vested right" that cannot be retroactively infringed. SEIU 925, No. 49726-3-II, slip op. at 12. Because it concluded that no PRA exemption applied, the court did not consider whether SEIU 925 met the other requirements for injunctive relief. See Ameriquest Mortg. Co. v. Office of Att’y Gen., 177 Wash.2d 467, 487, 300 P.3d 799 (2013) (nonagency party seeking injunction to prevent PRA disclosure must show (1) record specifically pertains to that party, (2) an exemption applies, and (3) disclosure is not in the public interest and would substantially and irreparably harm that party or a vital government interest).

¶ 7 About six weeks after the Court of Appeals issued its decision in this case, another Division Two panel reached the opposite conclusion in a case with identical relevant facts. The court in Puget Sound Advocates for Retirement Action v. Department of Social & Health Services ( PSARA ) held that, even if I-1501 did not apply retroactively, it still barred the release of records responsive to requests already pending upon its enactment. No. 50430-8-II, slip op. at 7, 2018 WL 5617942 (Wash. Ct. App. Oct. 30, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2% 2050430-8-II% 20Unpublished% 20Opinion.pdf. The PSARA court reasoned that the plain language of RCW 43.17.410(1) did not just exempt care providers’ personal information from the PRA but also, separately, prohibited the Department from releasing that information. Id. at 7-8. Therefore, the court concluded, the event "trigger[ing]" the statute was not the PRA request but, instead, the Department’s "obligation under the PRA to actually release the information." Id. at 8. For this conclusion, the PSARA court relied on In re Personal Restraint of Flint , 174 Wash.2d 539, 547, 277 P.3d 657 (2012), a case addressing the " ‘triggering event’ " for an amendment to a statute governing community custody violations. PSARA, No. 50430-8-II, slip op. at 8.

¶ 8 We granted SEIU 925’s petition for review. SEIU 925 v. Dep’t of Early Learning, 192 Wash.2d 1022, 435 P.3d 270 (2019).

ANALYSIS

¶ 9 All the issues presented in this case are questions of statutory interpretation. These are questions of law reviewed de novo. Williams v. Tilaye, 174 Wash.2d 57, 61, 272 P.3d 235 (2012).

¶ 10 SEIU 925 argues that the Court of Appeals should have applied the analysis used in PSARA , according to which RCW 43.17.410(1) (barring release) is "triggered" by an agency’s release of records, not by a public records request. Under that analysis, there is no question of retroactivity because RCW 43.17.010(1) applies prospectively to govern agency responses to PRA requests pending upon its enactment. The Foundation counters with two arguments. First, it contends there are good policy reasons to hold that, in any PRA dispute, the event "triggering" the application of governing law is always the request records. Consistent with the Court of Appeals decision below, this rule would mean that PRA disputes are always governed by the law in effect at the time of the request, unless a subsequent enactment is explicitly retroactive. The Foundation reasons that this rule will prevent agencies from dragging their feet after receiving a request, in the hope that new legislation will nullify their obligation to respond. It also contends that this time-of-request rule is consistent with the PRA’s broad disclosure mandate, at least in this case. Second, the Foundation argues that a PRA request creates a vested right, which the legislature may not retroactively infringe in any event.

¶ 11 If a PRA request creates a "vested right" to access responsive records, there is no need to determine what event triggers RCW 43.17.410(1) or to consider any other question of statutory interpretation in this case. Because no law may retroactively infringe a...