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

• Decision Date: 11 June 2018
• Docket Number: No. 76630-9-I,76630-9-I
• Citation: 423 P.3d 849
• Court: Washington Court of Appeals
• 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, Appellant.

423 P.3d 849

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, Appellant.

No. 76630-9-I

Court of Appeals of Washington, Division 1.

FILED: June 11, 2018

Hannah Sarah Sells, Attorney at Law, 2403 Pacific Ave. SE, Olympia, WA, 98501-2065, for Appellant.

Paul Drachler, Kristen Laurel Kussmann, Douglas Drachler McKee & Gilbrough LLP, 1904 3rd Ave. Ste. 1030, Seattle, WA, 98101-1170, Robert W. Kosin, Washington State Attorney General University of Washington Division, 4333 Brooklyn Ave. NE, Seattle, WA, 98195-9475, Nancy Sagor Garland, Office of the Attorney General, UW MS 359475, Seattle, WA, 98195-9475, for Respondent.

Edward Earl Younglove III, Younglove & Coker, PLLC, P.O. Box 7846, 1800 Cooper Point Rd. SW # 16, Olympia, WA, 98507-7846, Danielle Elizabeth Franco-Malone, Laura Elizabeth Ewan, Schwerin Campbell Barnard Iglitzin & Lav, 18 W Mercer St. Ste. 400, Seattle, WA, 98119-3971, Michael James, Washington Education Association, 32032 Weyerhaeuser Way S, Federal Way, WA, 98001-9687, Marie Duarte, Attorney at Law, 14675 Interurban Ave. S Ste. 307, Tukwila, WA, 98168-4614, for Amicus Curiae on behalf of WFSE SEIU 775.

PUBLISHED OPINION

Appelwick, C.J.

¶ 1 The Freedom Foundation sent a PRA request to UW, seeking records associated with union organizing created by, received by, or in the possession of four named UW employees and specified e-mail addresses. SEIU 925 filed a complaint seeking to enjoin UW from releasing the records. The superior court concluded that the records at issue are not "public records" under the PRA, because they were not prepared, owned, used, or retained within the scope of employment. We affirm.

FACTS

The Parties

¶ 2 The Freedom Foundation (Foundation) is a non-profit organization that "seeks to promote individual liberty, free enterprise, and limited accountable government." "Part of its mission is to pursue governmental transparency and accountability."

¶ 3 The University of Washington (UW) is a public four year institution of higher education, an agency of the State of Washington, and has campuses in Tacoma, Bothell, and Seattle.

¶ 4 Service Employees International Union Local 925 (SEIU 925) is a labor organization representing public and private sector workers in Washington State. Purposes of SEIU 925 include organizing faculty at institutions of higher education in Washington State and providing representation as appropriate to its members and the individuals the union represents. SEIU 925 has worked with UW faculty in efforts to organize a union under chapter 41.76 RCW, which provides collective bargaining for faculty at public four year institutions of higher education.

The Foundation’s PRA Request

¶ 5 In December 2015, the Foundation submitted a request under the Public Records Act (PRA), chapter 42.56 RCW, to UW. It requested all documents, e-mails, or other records created by, received by, or in the possession of UW faculty/employees Amy Hagopian, Robert Woods, James Liner, or Aaron Katz that contained specified terms, including "Freedom Foundation," "SEIU," "Union," and others. The request also sought e-mails sent to or received by the four named UW faculty members from the domain names "seiu925.org" and "uwfacultyforward.org." And, it requested all e-mails sent from and received by aaup@u.washington.edu.¹ The Foundation’s stated purpose of the request was "to ensure accountability and transparency among government employees using government-issued e-mail addresses."

¶ 6 After receiving the PRA request, the UW Office of Public Records and Open Public Meetings (OPR) asked the named professors for responsive records. Professor Robert Wood, one of the named faculty members in the Foundation’s request, sent records to OPR. OPR reviewed the records and "was unable to determine that the records were not public records." OPR notified Wood that the records would be released, unless he sought a court order by April 26, 2018 preventing their release. The proposed release, records provided only by Wood, was 3913 pages of e-mails and attachments, the "vast majority" of which were e-mails sent to or from Wood’s UW e-mail address, or to or from the AAUP listserver e-mail account.

Complaint and Subsequent Procedural History

¶ 7 On April 25, 2016, SEIU 925 filed a complaint for declaratory judgment and injunctive relief, seeking to enjoin UW from releasing the records. On the same day, SEIU 925 also moved for a temporary restraining order (TRO) and preliminary injunction to enjoin UW from releasing the records to the Foundation. Based on a proposal by the Foundation, the parties agreed that SEIU 925 would not seek a TRO and instead would argue the case at a preliminary injunction hearing. The Foundation agreed not to seek disclosure of the requested records and agreed to waive claims against the University for penalties and attorney fees for the period until the hearing.

¶ 8 On June 10, 2016, the trial court held a hearing on SEIU 925’s motion for a preliminary injunction and entered a TRO, enjoining the release of records, except those identified as "public records." The order also directed SEIU 925 on or before July 6 "to show by affidavit cataloging and describing with sufficient particularity as to the status of the records as public or not public records."

¶ 9 In compliance with the trial court’s order, SEIU 925 catalogued the documents at issue, identifying 102 pages of public records, and placing the remaining records into categories. UW sent the 102 pages of identified public records to the Foundation.

¶ 10 On August 5, 2016, the trial court held a second preliminary injunction hearing. The court entered a preliminary injunction, finding the documents identified as nonpublic records were not "public records" subject to disclosure. In its written order filed on September 23, the trial court found that SEIU 925 had standing to seek injunctive relief. Further, it found that the records at issue "were not created within the scope of the employee’s employment and therefore are not public records." And, it found that SEIU 925 demonstrated a likelihood of success on the merits of their claims for injunctive relief:

(1) [SEIU 925] has established a clear legal or equitable right to nondisclosure of those parts of [the records] that have not already been disclosed as public records because they contain personal and private emails [sic] unrelated to the scope of Professor Robert Wood’s employment at UW and cannot be categorized as public records; (2) a well-grounded fear of immediate invasion of that right by the disclosure of those records, and that (3) the release of those records will result in immediate, actual and substantial injury to [SEIU 925].

¶ 11 On October 4, 2016, the Foundation filed a motion for reconsideration of the injunction. On October 12, the trial court denied the Foundation’s motion.

¶ 12 On February 24, 2017, SEIU 925 filed a motion for summary judgment and permanent injunction. On March 27, 2017, the trial court entered a permanent injunction enjoining release of the documents at issue, finding that they were "not public records as defined in RCW 42.56.010(3) of the PRA."

¶ 13 On March 27, 2017, the Foundation appealed the order granting the TRO, the order granting SEIU’s motion for preliminary injunction, the order denying Foundation’s motion for reconsideration,² and the order granting SEIU’s motion for summary judgment and permanent injunction. On April 3, 2017, SEIU filed a motion to change trial date and for a stay of proceedings, pending the outcome of the appeal to this court. On April 7, 2017, the Foundation filed a combined motion to strike SEIU’s motion and motion for sanctions, asserting that the trial court no longer had jurisdiction. The trial court denied the Foundation’s motion to strike and for sanctions, and granted SEIU 925’s motion to change trial date and for a stay of proceedings, staying the matter and continuing the trial until October 23. The Foundation amended its appeal, appealing the order denying its motion to strike and for sanctions and the order granting SEIU’s motion to change trial date and stay proceedings.

DISCUSSION

¶ 14 The Foundation argues that the trial court erred in (1) granting a permanent injunction, (2) granting a preliminary injunction, and (3) granting a TRO. It also argues that the trial court abused its discretion in granting SEIU’s 925 motion to change trial date and stay proceedings and denying its motion to strike and motion for sanctions.

I. The PRA

¶ 15 The PRA mandates the broad disclosure of public records. Resident Action Council v. Seattle Hous. Auth., 177 Wash.2d 417, 431, 327 P.3d 600 (2013). Under RCW 42.56.070(1), a government agency must disclose public records upon request unless the records fall within the specific exemptions of the PRA or other statute that exempts or prohibits disclosure of specific information or records. Ameriquest Mortg. Co. v. Office of Att’y Gen., 177 Wash.2d 467, 485-86, 300 P.3d 799 (2013). The exemptions in the PRA are intended to exempt from public inspection those categories of public records most capable of causing substantial damage to the privacy rights of citizens or damage to vital functions of government. Id. at 486, 300 P.3d 799.

¶ 16 The party seeking to prevent disclosure bears the burden of establishing that an exemption applies. Id. If it is a party besides an agency that is seeking to prevent disclosure, then that party must seek an injunction. Id. at 487, 300 P.3d 799 ; RCW 42.56.540. In such a case, the party must prove (1) that the record in question specifically pertains to that party, (2) that an exemption applies, and (3) that the disclosure would not be in the public interest and would substantially and irreparably harm that party or a vital government function. Ameriquest, 177 Wash.2d at 487, 300 P.3d 799. Courts construe...