                                                                     This opinion was
                                                                      filed for record
      IN CLERKS OFFICE
tIJPISC COURT,StnE OF mSHSieTON
                                                               at       on /1<^'3L       ^
    DATE           3 1 2019 i
                                                                    Susan L. Carlson
'^(^Xa )\aaax\^'                                                 Supreme Court Clerk
        GtHeFMSriGE




   IN THE SUPREME COURT OF THE STATE OF WASHINGTON




 SERVICE EMPLOYEES
 INTERNATIONAL UNION LOCAL
 925, a labor organization,

                                  Petitioner,     NO. 96578-1


                  V.



 STATE OF WASHINGTON,                             EN BANC
 DEPARTMENT OF EARLY
 LEARNING,a state agency, and
 EVERGREEN FREEDOM
 FOUNDATION,a nonprofit corporation.              Filed          3 1 2019

                                  Respondents.


         STEPHENS, J.—^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 Foimdation 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
SEIU V. Evergreen Freedom Found, et al, 96578-1




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


          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.

          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 ofall license-exempt family child care providers, as defined
             by RCW 41.56.030(7).

CP at 909.




                                           -2-
SEIUV. Evergreen Freedom Found, et al, 96578-1




      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 (1-1501),

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 ROW 43.17.410(1),

provides that"neither the state nor any ofits 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 ROW

42.56.640." The other, now codified at RCW 42.56.640(1) in the PRA, provides

that "[sjensitive 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 '"[sjensitive 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


                                         -3-
SEIUV. Evergreen Freedom Found, et ah, 96578-1




in original). The initiative took effect on December 8, 2016. Laws OF 2017, ch. 4

(1-1501).

      Procedural History

      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 1-1501 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 ofEarly Learning, No. 49726-3-II(Wash. Ct. App. Sept.

18, 2018)(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049726-3-

II%20Unpublished%200pinion.pdf.

      In the Court of Appeals, SEIU 925 argued that the trial court erred by failing

to apply 1-1501 (specifically, the provisions later codified atRCW 43.17.410(1) and

RCW 42.56.640)because that law barred release ofthe requested records by the time

the court ruled on the motion for a preliminary injunction. Id. at 8. Division Two


                                        -4-
SEIUV. Evergreen Freedom Found, et al., 96578-1




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 1-1501 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 Wn.2d 363, 375 n.2, 374 P.3d 63

(2016)). Citing orAy Dragonslayer,Inc. v. Washington State Gambling Commission,

139 Wn. 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 AmeriquestMortg. Co. v. Office ofAtt'y Gen., 177 Wn.2d467,

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).

      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.


                                         -5-
SEIU V. Evergreen Freedom Found, et al., 96578-1




Department ofSocial & Health Services(PSARA) held that, even if 1-1501 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(Wash. Ct. App.

Oct.    30,    2018)     (unpublished),     https://www.courts.wa.gov/opinions/pdf

D2%2050430-8-II%20Unpublished%200pinion.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           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 ofFlint, 174 Wn.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.

       We granted SEIU 925's petition for review. SEIU 925 v. Dep't of Early

Learning, 192 Wn.2d 1022(2019).




                                          -6-
SEIUV. Evergreen Freedom Found, et al, 96578-1




                                    ANALYSIS


      All the issues presented in this case are questions of statutory interpretation.

These are questions of law reviewed de novo. Williams v. Tilaye, 174 Wn.2d 57,

61,272 P.3d 235 (2012).

      SEIU 925 argues that the Court of Appeals should have applied the analysis

used in PSARA, according to which ROW 43.17.410(1) (barring release) is

"triggered" by an agency's release ofrecords, not by a public records request. Under

that analysis,there is no question ofretroactivity because ROW 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 ofAppeals decision below,this rule would mean thatPRA 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




                                         -7-
SEIU V. Evergreen Freedom Found, et al, 96578-1




in this case. Second,the Foundation argues that a PRA request creates a vested right,

which the legislature may not retroactively infnnge in any event.

      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 "vested right," Caritas Servs., Inc. v. Dep't ofSac. & Health

Servs., 123 Wn.2d 391, 413-15, 869 P.2d 28 (1994), affirming the Court of Appeals

on that point would be dispositive. Therefore, we begin our analysis by explaining

why a PRA request does not create a vested right. We then explain why the

provisions of 1-1501 relevant in this case are triggered by the agency's release of

records, making them applicable when the trial court ruled on the preliminary

injunction.

      I.      A PRA Request Does Not Create a Vested Right To Examine
              Responsive Records

      The vested right doctrine is a constitutional protection for property rights.

Vashon Island Comm.for Self-Gov't v. Boundary Review Ed., 127 Wn.2d 759, 768,

903 P.2d 953 (1995). It protects private citizens against legislative takings and

impairment of contracts. See Gillis v. King County, 42 Wn.2d 373, 376, 255 P.2d

546 (1953). Accordingly, even if a new law is made expressly retroactive, it will




                                         -8-
SEIUV. Evergreen Freedom Found, et al, 96578-1




not be given retroactive effect if this infringes a true vested right. Caritas, 123

Wn.2d at 413-15. A retroactive amendment does not infringe a vested right merely

because it disappoints expectations. See Omega Nat'I Ins. Co. v. Marquardt, 115

Wn.2d 416, 433, 799 P.2d 235 (1990) ("A party has no vested right in the

continuation of existing statutory law."). On the contrary,"[a] vested right involves

'more than ... a mere expectation'" and requires an actual "'title, legal or equitable,

to the present or future enjoyment of property'." In re F.D. Processing, Inc., 119

Wn.2d 452, 463, 832 P.2d 1303 (1992) (second alteration in original) (quoting

Miebach v. Colasurdo, 102 Wn.2d 170, 181, 685 P.2d 1074 (1984)).

      Consistent with this standard, this court has found a vested right to a method

of Medicaid reimbursement for land already purchased, Caritas, 123 Wn.2d at 413-

15, and to a perfected security interest in a debtor's inventory and accounts, F.D.

Processing, 119 Wn.2d at 463. In contrast, we have not found a vested right to the

continued existence of a zoning scheme under which a developer began, but did not

complete, an application for a building permit. Abbey Rd. Grp., LLC v. City of

BonneyLake, 167 Wn.2d 242, 247-48, 254-61,218 P.3d 180(2009)(lead opinion);

id. at 261-63 (Madsen, J., concurring), or to the ability to send one's child to a

particular public school. Citizens Against Mandatory Bussing v. Palmason, 80

Wn.2d 445,452,495 P.2d 657(1972).


                                         -9-
SEIU V. Evergreen Freedom Found, et al,96578-1




      The Court ofAppeals opinion in this case provides no analysis explaining why

a PRA request creates a vested right. Nor does Dragonslayer,the sole authority that

court cited for this point. Each opinion simply states in conclusory fashion that an

amendment creating a new exemption from PRA requirements cannot be "remedial"

(and therefore presumptively retroactive) because it affects a vested right(to inspect

or copy records). SEIU925,No. 49726-3-II, slip op. at 12; Dragonslayer, 139 Wn.

App. at 449. This is incorrect. It is true that an amendment will not be deemed

"remedial" if it affects a substantive or a vested right, F.D. Processing, 119 Wn.2d

at 462-63, and there is no dispute in this case that new exemptions to the PRA affect

the substantive right to access government records. But a PRA request is nothing

like the activities this court has held to create constitutionally vested rights. To the

extent Dragonslayer and the Court of Appeals opinion in this case hold otherwise,

they are overruled.

      II.    RCW 43.17.410(1)Is Triggered by the Agency's Release of Records
             Rather Than the Original Request; It Therefore Applied When the
             Trial Court Ruled on the Preliminary Injunction

      As noted, the Court of Appeals in this case purported to recognize a general

rule, applicable to any "statute affecting the disclosure of records." SEIU 925, No.

49726-3-II, slip op. at 13. Under this rule—^which the Court of Appeals derived

solely from footnoted dicta in a distinguishable case—^the law governing a pending


                                         -10-
SEIUV. Evergreen Freedom Found, et al, 96578-1




public records request is always "the law in existence at the time the request was

made." Id. at 13 (citing John Doe A, 185 Wn.2d at 375 n.2). This was error.

        The "triggering event" analysis is fundamentally an inquiry into legislative

intent. See In re Estate ofHaviland, 177 Wn.2d 68,75-76, 301 P.3d 31 (2013). The

John Doe A dicta aside, nothing in the PRA itself indicates any intent to adopt a

blanket time-of-request rule.^ Nor can the courts impose one. Because a PRA

request does not create a vested right, it is not entitled to any special judicial

protection against changes in the law—^the legislative branch has the right to frustrate

a pending PRA request. That being the case, a court cannot preemptively announce

a rule that PRA requests are always governed by the law in effect when they were

filed. Instead, we must proceed on a case-by-case basis to determine the intent

underlying any PRA-related amendment or other new law.

        To determine what event triggers the application of new law, courts look to

the subject matter regulated by the statute in question and to the statute's plain

language, with the goal of effectuating the legislature's (or, as here, voters') intent.

Id.-, Utter ex rel. State v. Bldg. Indus. Ass'n of Wash, 182 Wn.2d 398, 410 n.3, 341


        ^ While the Foundation is correct that courts must construe the PRA in favor of
broad disclosure, RCW 42.56.030, that rule does not support the imposition of a time-of-
request rule. Because subsequent events may well make records more accessible than they
were at the time of a request, such a rule is just as likely to limit disclosures as to broaden
them.


                                             -11-
SEIU V. Evergreen Freedom Found, et al,96578-1




P.3d 953 (2015) (courts interpret voter initiatives according to general rules of

statutory construction (citing City ofSpokane v. Taxpayers of City ofSpokane, 111

Wn.2d 91, 97, 758 P.2d 480 (1988))). Because it tends to implicate retroactivity

concerns, any triggering event analysis must address these indicia of intent in light

of relevant constitutional interests (e.g., ex post facto clause protections and vested

rights), Flint, 174 Wn.2d at 547-48, and "[ejlementary considerations of fairness,"

In re Estate ofBurns, 131 Wn.2d 104, 110, 928 P.2d 1094(1997){citing Landgraf

V. USIFilm Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 128 L. Ed. 2d 229(1994));

cf. State V. Jefferson, 192 Wn.2d 225, 246-49, 429 P.3d 467 (2018) (GR 37,

governing Batson^ challenges, is triggered by voir dire rather than direct appeal

because the new rule implicates substantial constitutional rights and thus attaches

new legal consequences to triggering event). In this case, that analysis supports

SEIU 925's position and the PSARA court's conclusion: the event triggering I-

150rs relevant provisions is not the request for records but the agency's "obligation

under the PRA to actually release [them]." PSARA, No. 50430-8-II, slip op. at 8.

      The provisions relevant here appear in part three of the initiative, entitled

"Prohibiting the Release of Certain Public Records That Could Be Used To




       Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986).


                                         -12-
SEIUv. Evergreen Freedom Found, et al., 96578-1




Victimize Seniors and Vulnerable Individuals." CP at 304. By its plain terms, this

part ofthe initiative governs release, not requests.

      The statement ofintent in section 7 ofpart three of1-1501 also refers explicitly

to the "release of public records":

      It is the intent of part three of this aet to proteet seniors and vulnerable
      individuals from identity theft and other financial crimes by preventing the
      release of public records that could be used to victimize them. Sensitive
      personal information about in-home caregivers for vulnerable populations is
      protected because its release could facilitate identity crimes against seniors,
      vulnerable individuals, and the other vulnerable populations that these
      caregivers serve.

Id.


      Two other provisions in I-1501's part three also support SEIU 925's position.

The first is section 10,the provision relied on by the PSARA court, and now codified

at ROW 43.17.410(1). It provides:

      To protect vulnerable individuals and their children from identity crimes and
      other forms of victimization, neither the state nor any of its agencies shall
      release sensitive personal information of vulnerable individuals or sensitive
      personal information ofin-home caregivers for vulnerable populations.

RCW 43.17.410(1); see also CP at 305. As the PSARA court noted, this provision

amended chapter 43.17 RCW, which is titled "Administrative departments and

agencies—General provisions" and is not limited to the context ofPRA requests.

      Finally, section 11 of the initiative, now codified at RCW 42.56.645, also

supports SEIU 925's position. It contains a list of exceptions to the initiative's


                                           -13-
SEIU V. Evergreen Freedom Found, et al, 96578-1




general rule barring release. RCW 42.56.645(1)("Nothing in [this act] shall prevent

the release of public information in the following circumstances . . . ."). Two of

these exceptions accommodate the public's interest in obtaining information: there

is one for information concerning "individuals who have been accused of or

disciplined for abuse,neglect, exploitation, abandonment, or other acts involving the

victimization of individuals or other professional misconduct," and another for

certain releases "to a bona fide news organization." RCW 42.56.645(l)(b), (h).

There is no exception for pending PRA requests.

      To be sure, if there were any ambiguity here, the PRA's broad disclosure

mandate would compel us to affirm the Court of Appeals. See RCW 42.56.030

("This chapter shall be liberally construed and its exemptions narrowly construed

... [and] [i]n the event of conflict between the provisions of this chapter and any

other act, the provisions of this chapter shall govern."); Fisher Broad.—Seattle TV

LLC V. City ofSeattle, 180 Wn.2d 515, 525, 326 P.3d 688(2014)(all exceptions to

the PRA's disclosure requirements, "including 'other statute' exceptions, are

construed narrowly"(citing i/earat Corp. v. Hoppe,90 Wn.2d 123,138-39,580 P.2d

246 (1978))). But the relevant statutes are clear. I-150rs amendment to chapter

43.17 RCW plainly applies to the release of records. Since that application raises




                                        -14-
SEIUV. Evergreen Freedom Found, et al, 96578-1




no ex post facto concerns^ and infringes no vested rights, we hold, consistent with

the Court of Appeals' analysis in PSARA,that ROW 43.17.410(1)is triggered by the

release ofrecords responsive to a pending request.

                                   CONCLUSION


      RCW 43.17.410(1) was in effect when the trial court issued the preliminary

injunction on December 9, 2016, and therefore applied prospectively on that day to

bar release of the records responsive to the Foundation's pending request.

Accordingly, we reverse the Court of Appeals and remand to the trial court for

consideration ofthe remaining prerequisites to injunctive relief.




      ^ A law violates ex post facto clause protections when it "imposes punishment on
an act which was not punishable at the time the act was committed, or when it increases
the quantum ofpunishment for the crime after the crime was committed." State v. Schultz,
138 Wn.2d 638, 643, 980 P.2d 1265 (1999). None of the provisions in I-1501's section 3
impose any punishment at all.


                                         -15-
SEIU V. Evergreen Freedom Found., et al), 96578-1




WE CONCUR:




                                                    'A 2^^('eJ-




                                       -16-
Serv. Emp. Int'l Union Local 925 v. State, Dep 't ofEarly Learning, et al.




                                       No. 96578-1



       MADSEN,J.(concurring)—I agree with the majority that Initiative 1501 (1-1501)

prevents the release of the names and addresses of individuals providing childcare under

Washington's Working Cormections Child Care program that were requested prior to I-

150rs enactment. I also agree that the Public Records Act(PRA), ch. 42.56 RCW,does

not create a vested right for requesters to examine records. I write separately because I

would hold 1-1501 applies retroactively to pending records requests and emphasize that

the question facing the court today is a narrow one. We are asked to decide, in the

context of a trial court's ruling on injunctive relief, whether a court should apply new law

to a pending PRA request. Instead of answering this narrow question, the majority

broadly states that new law on PRA exemptions applies when an agency plans to release

requested records, which conflicts with this court's recent PRA decision in Gipson v.

Snohomish County, No. 96164-6(Wash. Oct. 10, 2019),

http://www.courts.wa.gov/opinions/pdf/961646.pdf.

                                        ANALYSIS


       Generally, the law applicable to a case is that which is in effect when a trial court

rules. State v. Brewster, 152 Wn. App. 856, 859, 218 P.3d 249 (2009). Here, we are
No. 96578-1
Madsen, J., concurring


asked to decide if this rule controls when a PRA request is made, the applicable law on

exemptions changes, and a party seeks injunctive relief applying the changed law. This is
a narrow question, and our answer to it must be considered in light of the unique

procedural posture in which it arises.

       Turning first to retroactivity, the language of1-1501 fairly conveys the intent of

the voters to apply the initiative to pending PRA requests. Intent for retroactive

application may be "fairly convey[ed]" from the language of an initiative. State v.

Zornes, 78 Wn.2d 9, 13, 475 P.2d 109(1970)(plurality opinion), overruled on other

grounds by United State v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198,60 L. Ed. 2d 755

(1979). The allegedly retroactive law at issue in Zornes cited to language stating that the

provisions "'shall not ever be applicable to any form of cannabis'" and noted that "not

ever" would be unnecessary if the legislature intended the act to only operate

prospectively. Id.(quoting LAWS OF 1969, ch. 256, § 7(13)); see also State v. Rose, 191

Wn. App. 858, 865, 365 P.3d 756(2015)(examining Zornes). Here, 1-1501 does not

contain similarly unequivocal words. But such unequivocal statements are not

necessarily required to evidence retroactive intent.

       In State v. Grant, a defendant appealed her conviction for intoxication on a public

highway in violation of RCW 9.68.040, which had been repealed in 1972. 89 Wn.2d

678,681, 575 P.2d 210 (1978). When this court reviewed the appeal, a new act was in

effect, which stated that intoxicated persons may not be subjected to criminal prosecution

solely because of their consumption of alcohol but, rather, should be afforded treatment.
No. 96578-1
Madsen, J., concurring


Id. at 682(citing former RCW 70.76A.010(Laws OF 1972, Ex. Sess., ch. 122, § 31)).

Relying on Zornes, the Grant court found legislative intent in the statement that "no

person shall go to trial on such a charge after the effective date ofthe act," indicating its
retroactive application. Id. at 684. In Rose, the Court of Appeals examined whether

Initiative 502 decriminalizing marijuana applied to pending prosecutions. 191 Wn. App.

at 862-63. 1-502 stated that the '"people intend to stop treating adult marijuana use as a

crime and try a new approach.'" Id. at 868. Treating marijuana as a crime occurs when a

suspect is arrested and charged, as well as when a suspect is taken to trial and when a

court imposes a punishment. Id. at 869. The court held that a voter would read intent to

stop treating marijuana as a crime as stopping prosecutions on the effective date ofthe

initiative. Id.


       Similar to Zornes, Grant, and Rose, the statement of intent in this case applies to

pending records requests. 1-1501 states that it intends to ''protect seniors and vulnerable

individuals from identity theft and other financial crimes by preventing the release of

public records that could be used to victimize them." Clerk's Papers(CP)at 304 (section

7)(emphasis added). The intent statement of part III goes on to explain that the release

of personal information about in-home caregivers "is protected because its release could

facilitate identity crimes against seniors, vulnerable individuals, and the other vulnerable

populations that these caregivers serve." Id. The repeated reference to "release" of

personal information is not strictly prospective; pending requests would also release the

information protected by the initiative. And this protection would be meager indeed if it
No. 96578-1
Madsen, J., concurring


applied solely to records released after I-lSOl's effective date—it would leave out the

personal information in pending PRA requests and leave seniors and their caregivers

vulnerable to financial crimes. 1-1501 states that the law is to be liberally construed to

promote the policy of protecting in-home caregivers for vulnerable populations. Id. at

306 (section 12).

       The plain language of the initiative fairly conveys the voters' intent to stop the

release of sensitive information of vulnerable populations and thus stop fraudulent actors

who "continue to prey on them." State of Washington Voters' Pamphlet, General

Election 35 (Nov. 8, 2016). The terms "release" and "protection" indicate that a voter

would assume 1-1501 applies to pending PRA requests.

       Accordingly, 1 would hold that 1-1501 applies retroactively and the trial court

should have applied the law in effect at the time it issued its ruling. A court's denial of

injunctive relief and order to release records triggers l-lSOl's retroactive application.

       The majority analyzes l-lSOl'sprospective application and concludes that the

triggering event for l-lSOl's relevant provisions is an agency's obligation to release

requested records. Majority at 12. 1 disagree. In light ofthe plain language ofthe

initiative and the procedural context of this ease, it is not the agency's release of records

but the trial court's order to release records that triggers l-lSOl's application. Tethering

1-1501 to an agency's release would directly conflict with this court's recent decision in

Gipson. In Gipson, we concluded that an agency is not required to continuously monitor

for changes in exemptions it asserted when a PRA request is first received, regardless of
No. 96578-1
Madsen, J., concurring


the number of installments of records necessary to satisfy the request. Gipson, slip op.

majority at 9, 13(Madsen, J.). Under the majority's approach in the present case, an

agency responding to a single voluminous request would be required to re-review a

claimed exemption for every installment of records it releases—expressly contrary to

Gipson. The majority's holding is unnecessarily broad and undercuts decided PRA case

law without acknowledgment or explanation. This conflict could be easily avoided by

tying I-1501's triggering event to the trial court's decision regarding releasing requested

records rather than to an agency's obligation to release requested records. While I cannot

join the majority's holding in this respect, I nevertheless agree that 1-1501 applied and

barred release of the requested records.

       With these considerations in mind, I respectfully concur.
No. 96578-1
Madsen, J., concurring




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