Wash. Fed'n of State Emps., Council 28 v. State

• Docket Number: 101093-1
• Decision Date: 24 August 2023
• Parties: WASHINGTON FEDERATION OF STATE EMPLOYEES, COUNCIL 28, et al.,[†] Respondents, v. STATE OF WASHINGTON, et al., Respondents, FREEDOM FOUNDATION, Petitioner.
• Court: Washington Supreme Court

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WASHINGTON FEDERATION OF STATE EMPLOYEES, COUNCIL 28, et al.,^[†] Respondents,
v.
STATE OF WASHINGTON, et al., Respondents,

FREEDOM FOUNDATION, Petitioner.

No. 101093-1

Supreme Court of Washington, En Banc

August 24, 2023

MADSEN, J.

The Freedom Foundation (Foundation) requested the identities and workplace contact information for public employees. To prevent disclosure of this information, affected employees sought declaratory and injunctive relief through the Washington State Federation of State Employees and other labor unions (Unions). The Unions alleged their members, who are victims of domestic violence, sexual abuse,

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stalking, and harassment, possess a constitutional liberty interest in personal security that the government would violate by releasing the requested information. The courts below agreed. On appeal, the Foundation argues no such fundamental right exists, the Unions lack standing, and the Unions failed to bring justiciable claims. During the course of this case, the Washington State Legislature enacted a law exempting the requested information from disclosure under the Public Records Act (PRA), ch. 42.56 RCW.

We hold that the Unions have standing and brought justiciable claims on behalf of their members. However, the Unions did not demonstrate particularized harm to affected public employees; therefore, they do not satisfy the PRA injunction standard. RCW 42.56.540. We affirm the Court of Appeals on these grounds. We reverse the Court of Appeals' ruling on declaratory relief because this matter can be resolved on nonconstitutional grounds. Accordingly, we remand this case to the superior court to apply the new statutory exemption.

BACKGROUND

The Foundation is a nonprofit organization that seeks "to promote individual liberty, free enterprise, and limited accountable government." Clerk's Papers (CP) at 218. As part of its mission to alert public employees of their right to opt out of union membership, the Foundation filed public records requests for employee contact information. The Foundation then began filing requests with state and local agencies seeking such information. Specifically, the Foundation sought public employees'

• first, middle, and last name

• job title

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• full birthdate

• work e-mail address

• employer agency/department

• name/title of exclusive bargaining representative/union

• FTE status/percentage

• current annual salary

• duty station location/address CP at 13

The Unions filed a complaint for declaratory and injunctive relief against the agencies contacted by the Foundation. The Unions argued that the release of the requested information for abuse survivors would violate their fundamental privacy and personal safety rights under substantive due process. See Wash. Const. art. I, §§ 3, 7; U.S. Const. amend. XIV. The trial court granted an ex parte order precluding the agencies named in the complaint from disclosing the information until a later show cause hearing.

The Unions then moved for leave to file redacted declarations and for the original declarations to be filed under seal. The motion stated that survivors would file sealed declarations in support of the application for preliminary injunction, which would name the declarants and describe information that could lead their abusers to locating them. At later hearings, the Unions explained that they "were able to get some declarations from survivors . . . willing to provide those to the court if we can provide them under seal, and we haven't had time to have the court review that motion." 1 Rep. of Proc. (RP) (Dec. 27, 2019) at 13. Instead, the Unions submitted declarations from representatives who had communicated with survivors, sharing incidents of victimization, efforts to

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avoid abusers, and fears for the survivors' personal safety. E.g., CP at 51-55 (Decl. of Kent Stanford) (detailing the experience of a union member who was a survivor of domestic violence and who took "drastic steps" to avoid their abuser, how that abuser violated protective orders and forced the survivor to move residences and find a new school for their children).

The Unions subsequently filed a motion for preliminary injunction to be heard in lieu of a show cause hearing. The Unions also filed an amended complaint identifying additional agencies to be prevented from releasing information to the Foundation.

The trial court granted the preliminary injunction. The order prevented the public entities named in the Unions' complaint from releasing the "names, birthdates, duty station/location and work email," that is "personal information," for employees who provided documentation supporting their (and/or their family members') status as abuse survivors. CP at 57. The order also found that disclosure would violate those employees' privacy rights under the state and federal constitutions by placing their personal bodily security and lives in jeopardy. The trial court enjoined disclosure for a number of months to allow the named agencies to identify the protected employees while all parties filed status reports in the interim.

After the preliminary injunction was granted, the Foundation continued requesting employee contact information from the same and other agencies. In response, the Unions filed a second amended complaint asking the trial court to extend the preliminary injunction to the new agencies, which the court granted.

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Despite the extension of the preliminary injunction, the Foundation continued requesting the same information from different state agencies. The Unions continued amending their complaint in response.

The trial court granted the Unions' motion for summary judgment and issued a permanent injunction.^[1] The injunction order stated that the disclosure of personal information for survivors of abuse would violate their constitutional rights. Based on this conclusion, the court exempted disclosure and permanently enjoined the release of the requested information for the protected employees. About 1,600 public employees were identified and represented in court by nearly 50 labor unions.

The Foundation appealed the preliminary injunction; the orders extending it; and the order granting summary judgment, declaratory relief, and permanent injunction. Wash. Fed'n of State Emps., Council 28 v. State, 22 Wn.App. 2d 392, 403, 511 P.3d 119 (2022) (WFSE). The Foundation argued primarily that no constitutional right existed to protect the requested information and that the Unions presented insufficient facts to justify relief. Id. at 404.

First, the Court of Appeals concluded that the Unions brought a justiciable controversy under the Uniform Declaratory Judgment Act (UDJA), ch. 7.24 RCW. Id. at 406-07. The parties presented an actual dispute, with opposing and substantial interests for which judicial determination would be final and conclusive. Id. at 406 (citing

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To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001)). Based on the declaration from domestic violence expert Grace Huang, the court decided that the threat of harm to some public employees was more than hypothetical and a determination on the scope of an employees' right to a PRA exemption would be conclusive. Id. at 407.

Next, the court held that the Unions failed to present sufficient, admissible evidence to satisfy the PRA injunction standard, RCW 42.56.540. Id. at 409. Although the Unions submitted declarations from representatives describing the "heart wrenching" experiences and fears of their members, the declarations constituted inadmissible hearsay and the testimony of Huang was "too generalized." Id. at 411-15. Thus, the court reversed the summary judgment and permanent injunction order, preserving the preliminary injunction and remanding the case to the trial court to determine whether particular employees would be placed in danger if the requested information was disclosed. Id. at 416.

The Court of Appeals also upheld declaratory relief for the Unions' constitutional claim. Reviewing federal due process law, the court "conclude[d] that under the substantive due process clause, article I, section 3 of the Washington Constitution, survivors of domestic violence, sexual assault, stalking, or harassment have a fundamental constitutional interest in preventing the release of information about their whereabouts when their perpetrators could use the information to locate them and inflict physical harm on them or their family members." Id. at 406, 405 (citing Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006); Ingraham v. Wright, 430 U.S. 651,

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673-74, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)). Central to this holding is the "'state-created danger'" doctrine, which imposes liability on governments for failing to protect a person from third-party injury when the government created or increased that danger. Id. at 405 (citing DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 201, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Irish v. Fowler, 979 F.3d 65, 73 (1st Cir. 2020)).

The Court of Appeals then applied strict scrutiny to the disclosure, reasoning that while release of employees' identity and work contact location serves a legitimate public interest in promoting transparency and public oversight, it was not narrowly tailored when abusers could use that information to locate and harm survivors. Id. at 407-08 (citing Wash. Pub. Emps. Ass'n v. Wash. State Ctr. for Childhood Deafness & Hr'g Loss, 194 Wn.2d 484, 508, 450 P.3d 601 (2019); Kallstrom v. City of Columbus, 136 F.3d 1055, 1065 (6th Cir. 1998)).

The Foundation sought discretionary review here, which we granted. Many of the named public agencies submitted answers to the petition for review, acknowledging the appeal and taking no position on the merits. We have received amici curiae briefing from Disability Rights Washington and the American Civil...