Serv. Emps. Int'l Union Local 925, v. Freedom Found.

• Decision Date: 20 December 2016
• Docket Number: No. 48522-2-II,48522-2-II
• Citation: 389 P.3d 641,197 Wash.App. 203
• Court: Washington Court of Appeals
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization, Appellant and Cross-Respondent, v. FREEDOM FOUNDATION, Respondent and Cross-Appellant, State of Washington, Department of Social and Health Services, Respondent.

197 Wash.App. 203

389 P.3d 641

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, a labor organization, Appellant and Cross-Respondent,

v. FREEDOM FOUNDATION, Respondent and Cross-Appellant,State of Washington, Department of Social and Health Services, Respondent.

No. 48522-2-II

Court of Appeals of Washington, Division 2.

December 20, 2016

Robert H. Lavitt, Danielle Elizabeth Franco-Malone, Schwerin Campbell Barnard Iglitzin & Lav, 18 W. Mercer St., Ste. 400, Seattle, WA, 98119-3971, for Appellant.

Alicia O. Young, Attorney General's Office, P.O. Box 40126, Olympia, WA, 98504-0126, Morgan B. Damerow, Albert Henry Wang, 7141 Cleanwater Lane S.W., P.O. Box 40145, Olympia, WA, 98504-0145, for

Michele Lynn Earl-Hubbard, Allied Law Group LLC, P.O. Box 33744, Seattle, WA, 98133-0744, James Abernathy, David Morgan Steven Dewhirst, Stephanie Diane Olson, Freedom Foundation, P.O. Box 552, Olympia, WA, 98507-0552, for Respondent and Cross-Appellant.

Johanson, J.¶1 The Freedom Foundation (Foundation) submitted a Public Records Act (PRA)¹ request to the Department of Social and Health Services (DSHS). The Foundation requested disclosure of the names of childcare providers in Washington's "Family Friends and Neighbors" (FFN) program and their "state contact" information. The Foundation's expressed purpose in requesting the records was to correspond with the individual providers and to notify them of their constitutional right to refrain from union membership and fee payments. DSHS was ready to disclose the requested information. But Service Employees International Union Local 925 (SEIU 925), the labor union representing the providers, obtained a temporary restraining order (TRO) and filed a complaint for injunctive relief to enjoin DSHS from disclosing this information. The superior court denied injunctive relief. SEIU 925 appeals.²

¶2 We hold that (1) RCW 42.56.070(9) does not preclude DSHS from disclosing the FFN provider information because the Foundation did not request the information for commercial purposes, (2) RCW 42.56.230(2)(a)(ii) does not preclude DSHS from disclosing the FFN provider information because the Foundation's request does not seek children's personal information, and (3) the Washington constitution does not preclude DSHS from disclosing the FFN provider information because the requested information does not intrude into the private affairs of the FFN providers. The superior court properly denied permanent injunctive relief because neither the language nor the spirit of the PRA or the Washington constitution preclude DSHS from releasing the requested FFN provider information. We affirm the superior court.

FACTS

I. THE PARTIES

¶3 FFN providers are license-exempt family, friends, and neighbors who provide state-subsidized childcare. Most FFN providers care for the child in the child's home, some providers are relatives of the child they care for, and some share the same address as the child. Working Connections Child Care (WCCC) is the State's largest childcare subsidy program. SEIU 925 is the FFN providers' collective bargaining representative and the signatory to the contract with the State that determines the manner and rate with which the WCCC makes subsidy payments to the FFN providers.

¶4 The Foundation is a nonprofit based in Washington working to "expose, defund, and discredit" unions. Clerk's Papers (CP) at 103. One of the Foundation's purposes is to educate public employees about their rights to withdraw their membership in and payment of fees to public sector unions. The Foundation has contacted SEIU 925 members and directed them to a website explaining how providers can "opt out" of union membership, but that site does not contain a link to the Foundation's website or links to contribute to the Foundation. In fundraising letters, e-mails, and ads from 2014 to 2016, the Foundation speaks to its mission to bankrupt and dismantle unions, including SEIU 925. Some of the fundraising letters specifically mention using lists of SEIU 925 members to visit or contact them to let them know they can opt out of union membership.

II. THE FOUNDATION'S PRA REQUEST

¶5 In October 2014, the Foundation submitted a PRA request to DSHS that requested a list of all FFN and/or license-exempt childcare providers who received funds, payments, or reimbursements within the last year from DSHS through the WCCC program and a list of such providers for whom DSHS has withheld payments to SEIU 925 in the last year. The request sought "the full name of the primary contact, any relevant firm or enterprise name, the mailing address used for state business, email address used for state contact, and the telephone number used for state contact." CP at 57. The request affirmed it would not be used for commercial purposes. In November, DSHS notified SEIU 925 of the Foundation's PRA request and that DSHS would release the records absent a court order issued by December 10.

III. COMPLAINT AND TRO

¶6 In December, SEIU 925 filed a complaint for declaratory and injunctive relief against DSHS and the Foundation requesting a permanent injunction under RCW 42.56.540 prohibiting DSHS from releasing the FFN provider information. SEIU 925 also filed a motion for a TRO to prevent the immediate release of the information.

¶7 SEIU 925 argued that the TRO was necessary because release of the FFN providers' information was prohibited under RCW 42.56.070(9)'s "commercial purposes" provision and would violate RCW 42.56.230(2)(a)(ii), a provision that exempts personal information of children from disclosure. SEIU 925 also argued that the requested information was exempt from disclosure because the release of the information posed an unreasonable invasion of personal privacy prohibited by the state constitution.³ Following argument, the superior court granted SEIU 925's TRO motion, which enjoined DSHS from releasing FFN providers' information until the matter could be reviewed on January 9, 2015.

IV. INJUNCTION HEARING AND APPEAL

¶8 On January 9, 2015, the superior court held a permanent injunction hearing. SEIU 925 reiterated its TRO arguments.

¶9 The Foundation stated that its intent behind the PRA request was to inform childcare providers of their constitutional right to choose whether they wanted to financially support a union. The Foundation noted that the superior court already rejected a similar commercial purposes argument in its October 22, 2014 decision in SEIU Healthcare 775NW v. Department of Social & Health Services , cause no. 14-2-01903-1 (Thurston County Superior Court), and that any factual differences that SEIU 925 may assert between the cases had no legal significance.

¶10 In its ruling, the superior court stated that many of the issues raised had previously been decided in SEIU Healthcare 775NW and in SEIU Local 925 v. Department of Early Learning , cause no. 14-2-02082-9 (Thurston County Superior Court). The trial court ruled that the Foundation's PRA request was not for a commercial purpose and that the disclosure of children's personal information exemption under RCW 42.56.230(2)(a)(ii) did not apply. Further, the superior court rejected SEIU 925's constitutional privacy argument.

¶11 The superior court denied SEIU 925's request for injunctive relief. But the superior court extended the TRO for 20 days to allow SEIU 925 to appeal its ruling. SEIU 925 appealed the superior court's order denying injunctive relief to this court.

ANALYSIS

I. PRA STANDARD OF REVIEW AND RULES OF LAW

A. THE PRA

¶12 We review challenges to an agency action under the PRA de novo. RCW 42.56.550(3) ; Resident Action Council v. Seattle Hous. Auth. , 177 Wash.2d 417, 428, 327 P.3d 600 (2013). "Where the record consists only of affidavits, memoranda of law, and other documentary evidence, an appellate court stands in the same position as the trial court in reviewing agency action challenged under the PRA." Robbins Geller Rudman & Dowd LLP v. Office of Att'y Gen. , 179 Wash.App. 711, 719-20, 328 P.3d 905 (2014).

¶13 The PRA mandates the broad disclosure of public records. Resident Action Council , 177 Wash.2d at 431, 327 P.3d 600. Under RCW 42.56.070(1), a government agency must disclose public records upon request unless the records fall within the specific exemptions of RCW 42.56.070(9), 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) (Ameriquest II ). The party seeking to prevent disclosure bears the burden of establishing that an exemption applies. RCW 42.56.550(1) ; Ameriquest II, 177 Wash.2d at 486, 300 P.3d 799.

¶14 RCW 42.56.030 expressly requires the PRA be "liberally construed and its exemptions narrowly construed ... to assure that the public interest will be fully protected." As a result, we must liberally construe the PRA in favor of disclosure. West v. Port of Olympia , 183 Wash.App. 306, 311, 333 P.3d 488 (2014). When evaluating a PRA claim, we must also "take into account the policy ... 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).

B. PERMANENT INJUNCTIONS UNDER THE PRA

¶15 We review a trial court's decision to grant or deny a permanent injunction in relation to the PRA de novo. Robbins Geller , 179 Wash.App. at 719, 328 P.3d 905. A party other than a government agency seeking to prevent the disclosure of public records under the PRA may seek an injunction under RCW 42.56.540. Ameriquest II, 177 Wash.2d at 487, 300 P.3d 799. RCW 42.56.540 provides,

The examination of any specific public record may be enjoined if, upon motion and affidavit by an agency or its representative or a person who is named in the record or to whom the record specifically pertains, the superior court ... finds that such examination would clearly not be in the public interest and would substantially

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