West v. TESC Bd. of Trs.

Decision Date27 February 2018
Docket NumberNo. 49120-6-II,49120-6-II
Citation414 P.3d 614
Parties Arthur WEST, Appellant, v. TESC BOARD OF TRUSTEES; Fred Goldberg; David Nicandri; Anne Proffitt; Gretchen Sorensen; James Wigfall; Nicholas Wooten; State of Washington, Respondents.
CourtWashington Court of Appeals

Arthur West (Appearing Pro Se), 120 State. Ave., N.E., #1497, Olympia, WA, 98501, for Appellant.

Aileen B. Miller, WA Attorney General's Office, EDU, P.O. Box 40100, Olympia, WA, 98504-0100, for Respondents.

Melnick, J.¶1 Arthur West sued The Evergreen State College (Evergreen) after Evergreen, relying on the Family Educational Rights and Privacy Act of 1974 (FERPA),1 redacted or withheld certain records when responding to West's public records request. FERPA conditions receipt of federal higher education funding on compliance with its student information nondisclosure requirements. West argued that because FERPA imposes funding constraints on Evergreen rather than directly regulating its disclosure activities, the law cannot fall within the "other statute" exemption of the Public Records Act (PRA).2 The Superior Court found in favor of Evergreen. We affirm.

FACTS

I. BACKGROUND
A. Evergreen

¶2 Evergreen, a four-year institution of higher education in Washington, receives federal funding.3 Federal education funding is often conditional on the institution's compliance with federal laws, including FERPA. 20 U.S.C. § 1232g ; 34 C.F.R. § 99. FERPA restricts school disclosure of students' education records and personally identifiable information. See 20 U.S.C. § 1232g.

¶3 On October 21, 2014, West submitted a records request to Evergreen under the PRA. West requested:

1. All records concerning the application and enforcement of [Evergreen's] Criminal Trespass Policy, January 1, 2014 to present.
2. Any grant voucher or certification by the college that it will comply with Civil Rights laws as a condition of receiving any federal or state grants or funding, 2010 to present.

Clerk's Papers (CP) at 512. After communicating with Evergreen, West clarified his request as follows:

1. Other types of records, as well as the policy.
2. Please produce any records concerning compliance with any conditions as a condition of applying for or receiving federal funding.

CP at 516. Due to the breadth of West's request, Evergreen determined that it would share the relevant records with West in installments. With the exception of August 2015, Evergreen delivered one installment each month from November 2014 to October 2015. In total, Evergreen produced 1,219 pages in response to West's request.

B. Evergreen Redacts Records

¶4 As Evergreen's public records officer processed West's request, she identified FERPA as a possible PRA exemption. 20 U.S.C. § 1232g. Evergreen redacted documents believed to contain either student education records or personally identifiable information within five of the installments.4 The relevant records were primarily generated by Evergreen's Student Affairs Office and its Campus

Police Services. The responsive documents in some installments contained records, e-mails, and e-mail attachments. Evergreen redacted personally identifiable information, including names, student numbers, and disciplinary records. With respect to the Campus Police Services' installment, Evergreen redacted the 16 pages that contained personally identifiable information from student records. The redactions included student identification (ID) numbers, student ID photos, and disciplinary e-mails to students.

¶5 Evergreen also redacted records it believed to be subject to the attorney-client privilege stated in RCW 5.60.060(2)(a). According to Evergreen's redaction log, the redacted document was an e-mail requesting advice from Assistant Attorney General Colleen Warren. The withheld documents were attachments to that e-mail relating to the same subject.

II. PROCEDURAL HISTORY

¶6 On May 12, 2015, West filed a complaint against Evergreen. West accused Evergreen of putting into practice an "unwritten and illegal Criminal Trespass Policy." CP at 4. More to the point, West argued that Evergreen's failure to disclose "records of completed criminal investigations related to" the alleged criminal trespass policy violated the PRA, and that Evergreen had improperly relied on FERPA to redact the files. CP at 4. Evergreen argued that its FERPA redactions were proper under the "other statute" exception to the PRA, and moved for summary judgment.

¶7 The trial court granted summary judgment to Evergreen on the FERPA issue. The trial court ruled that FERPA fell within the "other statute" exception of the PRA. However, the court needed further information to determine whether FERPA was properly applied in this case. The trial court directed West to identify "the specific documents and redactions that he believe[d] to improperly apply to FERPA," instructed Evergreen to explain its redactions, and scheduled a status conference for the following month. CP at 56.

¶8 West identified the challenged redactions. Evergreen asserted it properly exempted these redactions as protected student information under FERPA. West moved for summary judgment, and Evergreen filed a cross motion for dismissal.

¶9 After a hearing, the trial court issued a second order. The trial court ruled that Evergreen had "properly discharged its obligations" under the PRA. CP at 110. Accordingly, the trial court denied West's summary judgment motion and dismissed the case. West appeals.

ANALYSIS

I. APPEAL OF PARTIAL SUMMARY JUDGMENT AND DISMISSAL

¶10 West argues that FERPA does not qualify as an "other statute" authorizing the redaction of otherwise public records under the PRA. West also argues that Evergreen improperly relied on the attorney-client privilege to withhold requested records. We disagree.

A. Standard of Review

¶11 We review PRA cases de novo. Nissen v. Pierce County , 183 Wash.2d 863, 872, 357 P.3d 45 (2015) ; RCW 42.56.550(3). With the appellate court standing in the shoes of the trial court, the party seeking to prevent disclosure bears the burden of establishing that an exemption applies. Ameriquest Mortg. Co. v. Office of Att'y Gen. , 177 Wash.2d 467, 486, 300 P.3d 799 (2013) ( Ameriquest II ); RCW 42.56.550(1).

¶12 A superior court's decision on summary judgment is also reviewed de novo. Didlake v. State , 186 Wash. App. 417, 422, 345 P.3d 43 (2015). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

B. The PRA Requires Disclosure of Non-Exempt Public Records

¶13 The purpose of the PRA is to increase "governmental transparency and accountability by making public records accessible to Washington's citizens." John Doe A ex rel. Roe v. Wash. State Patrol , 185 Wash.2d 363, 371, 374 P.3d 63 (2016). Accordingly, 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). The statute's provisions are to be "liberally construed and its exemptions narrowly construed." RCW 42.56.030. Unless an exemption applies, an agency must disclose public records upon request. RCW 42.56.070(1).

¶14 There are two broad categories of PRA exemptions, specific exemptions within the PRA itself, and exemptions based on other laws. RCW 42.56.210 -.470;5 RCW 42.56.070(1). RCW 42.56.070 is the source of the "other statute" exemption at issue in this case. Agencies "shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of ... this chapter, or other statute which exempts or prohibits disclosure of specific information or records." RCW 42.56.070(1).

¶15 An "other statute" does not need to "expressly address the PRA, but it must expressly prohibit or exempt the release of records." John Doe A , 185 Wash.2d at 372, 374 P.3d 63. This provision does not permit courts to imply exemptions. PAWS v. Univ. of Wash ., 125 Wash.2d 243, 259-60, 884 P.2d 592 (1994) ( PAWS II ). The "[l]egislature did not intend to entrust to ... judges the [authority to imply] extremely broad and protean exemptions." PAWS II , 125 Wash.2d at 260, 884 P.2d 592.

¶16 By contrast, if a law contains a specific exemption that "expressly prohibit[s]" or exempts the disclosure of specific information or records, it may qualify as an "other statute" exemption under the PRA. John Doe A , 185 Wash.2d at 372, 374 P.3d 63 ; PAWS II , 125 Wash.2d at 262, 884 P.2d 592. Courts finding an "other statute" exemption have also identified a "legislative intent to protect a particular interest or value." John Doe A , 185 Wash.2d at 378, 374 P.3d 63.

C. FERPA Qualifies as an "Other Statute" Because it Exempts Student Education Records

¶17 A federal law may be an "other statute" under the PRA. Ameriquest Mort. Co. v. Office of Atty. Gen. , 170 Wash.2d 418, 439-40, 241 P.3d 1245 (2010) ( Ameriquest I ), held that the Gramm–Leach–Bliley Act (GLBA), 15 U.S.C. §§ 6801 – 6809, was an "other statute" exempting records from PRA disclosure. As the Ameriquest I court explained, the "other statute exemption ... allows the federal regulation's privacy protections to supplement the PRA's exemptions. We have held numerous other state statutes' disclosure prohibitions are thus incorporated into the PRA [and] see no reason why a federal law should be treated differently."6 Ameriquest I , 170 Wash.2d at 440, 241 P.3d 1245. Washington courts draw no distinction between state and federal laws in terms of what constitutes an "other statute" under the PRA. Ameriquest I , 170 Wash.2d at 440, 241 P.3d 1245.

¶18 As discussed above, FERPA is an "other statute" if it expressly exempts the relevant records from disclosure. John Doe A , 185 Wash.2d at 372, 374 P.3d 63. In this case, FERPA qualifies as an "other statute" because it exempts student education records like those redacted or...

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