 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF SEATTLE, a Washington
municipal corporation,                          No. 69129-5-1

                      Respondent,               DIVISION ONE


               v.                                PUBLISHED OPINION

JAMES EGAN, an individual,

                      Appellant.                 FILED: February 3, 2014


       Grosse, J. — The Public Records Act (PRA), chapter 42.56 RCW, is a

legislatively created right of access to public records. The legislature is free to

restrict or even eliminate access without offending any constitutional protection.

The city of Seattle (City) brought a declaratory action for the limited purpose of

determining the applicability of the privacy act's1 prohibitions against the release
of the records requested here. Such an action is specifically provided for in the

PRA. Because James Egan does not have a constitutional right to the records

requested, his request under the PRA does not fall within the ambit of the anti-

SLAPP2 statute as protected public participation or petition activity. We affirm^ne        o




trial court's dismissal.                                                       rn
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                                      FACTS                                    ^ =|^p
       On September 23, 2011, James Egan requested records from the Settles         r^ i—


                                                                              en    o^~
Police Department's Office of Professional Accountability's (OPA) interna*- -•

investigation, regarding complaints against four officers. Included in the request

were 36 "dash-cam" videos that OPA reviewed in the investigations of those


1 Ch. 9.73 RCW.
2Strategic Lawsuits Against Public Participation, RCW 4.24.525.
No. 69129-5-1/2


complaints. The City provided Egan with some records but refused to release 35

of the 36 dash-cam videos, claiming those were exempt from disclosure under

RCW 9.73.090(1 )(c).     RCW 9.73.090(1 )(c) prohibits the City from providing

videos to the public until final disposition of any criminal or civil litigation that

arises from the event or events that were recorded.3

       Egan disputed the application of that exemption and threatened to sue.

The City filed a motion for declaratory judgment and a preliminary injunction

against Egan. RCW 42.56.540 authorizes a court to enjoin production of a public

record falling under an exemption. The City wanted to resolve any uncertainty

and to avoid the accumulation of potential penalties should Egan delay suing.

The City noted that it was involved in a pending lawsuit in which access to dash-

cam videos was one of the issues.4

       Egan filed a motion to strike and dismiss the City's suit under RCW

4.24.525, Washington's anti-SLAPP statute. Egan appeals the trial court's denial

of that motion.

                                    ANALYSIS

       A strategic lawsuit against public participation—otherwise known as a

"SLAPP" suit—is a meritless suit filed primarily to chill a defendant's exercise of


3RCW 9.73.090(1 )(c) provides:
              No sound or video recording made under this subsection
       (1)(c) may be duplicated and made available to the public by a law
       enforcement agency subject to this section until final disposition of
       any criminal or civil litigation which arises from the event or events
       which were recorded. Such sound recordings shall not be divulged
       or used by any law enforcement agency for any commercial
       purpose.
4 Fisher Broadcasting v. City of Seattle, No. 87271-6, argued before the Supreme
Court on May 14, 2013.
No. 69129-5-1/3


First Amendment rights.5 This court reviews the denial of an anti-SLAPP motion
de novo.6 To prevail on a motion to dismiss Egan was required to prove by a
preponderance of the evidence that his claim was based on an action involving

public participation and petition.7 RCW 4.24.525(2) defines public participation
and petition as

         (a) Any oral statement made, or written statement or other
      document submitted, in a legislative, executive, or judicial
      proceeding or other governmental proceeding authorized by law;

            (b) Any oral statement made, or written statement or other
       document submitted, in connection with an issue under
       consideration or review by a legislative, executive, or judicial
       proceeding or other governmental proceeding authorized by law;

            (c) Any oral statement made, or written statement or other
       document submitted, that is reasonably likely to encourage or to
       enlist public participation in an effort to effect consideration or
       review of an issue in a legislative, executive, or judicial proceeding
       or other governmental proceeding authorized by law;

          (d) Any oral statement made, or written statement or other
       document submitted, in a place open to the public or a public forum
       in connection with an issue of public concern; or


5 Laws of 2010, ch. 118, §1. Under Laws of 2002, ch. 232, § 1, amending
former RCW 4.24.510, "SLAPP suits are designed to intimidate the exercise of
First Amendment rights and rights under [a]rticle I, section 5 of the Washington
[Sjtate Constitution."
6 Citv of Lonqview v. Wallin. 174 Wn. App. 763, 776, 301 P.3d 45, rev, denied.
178 Wn.2d 1020 (2013); see Euaster v. Citv of Spokane. 139 Wn. App. 21, 33,
156 P.3d 912 (2007) (The interpretation and application of a statute are reviewed
de novo.)
7 RCW 4.24.525(4)(b) provides:
     A moving party bringing a special motion to strike a claim under this
       subsection has the initial burden of showing by a preponderance of
       the evidence that the claim is based on an action involving public
       participation and petition. If the moving party meets this burden, the
       burden shifts to the responding party to establish by clear and
       convincing evidence a probability of prevailing on the claim. If the
       responding party meets this burden, the court shall deny the
       motion.
No. 69129-5-1/4




          (e) Any other lawful conduct in furtherance of the exercise of
      the constitutional right of free speech in connection with an issue of
      public concern, or in furtherance of the exercise of the constitutional
      right of petition.

Egan argues that all of the subsections apply to the present case. We disagree.

      Here, the City's declaratory judgment action under RCW 42.56.540 asked

the court to determine whether the City had properly applied RCW 9.73.090(1 )(c)

in denying Egan's PRA request for the dash-cam videos. Under that statute,

Egan is a necessary party. Because the legislature's intent in adopting RCW

4.24.525 was to address "lawsuits brought primarily to chill the valid exercise of

the constitutional rights of freedom of speech and petition for the redress of

grievances,"8 this court looks to First Amendment cases to aid in its
interpretation. Egan argues the anti-SLAPP statute applies because the City
sought relief because of Egan's "threat" to sue. But the gravamen of the City's
suit was whether a PRA exemption applied to Egan's original request, not to

suppress Egan's right to bring an action. There was no question that Egan
retained his right to bring an action under the PRA. But Egan was a necessary

party under RCW 42.56.540.9 The City's declaratory action did not interfere with
Egan's right to petition. In John Doe No. 1 v. Reed, the United States Supreme
Court distinguished disclosure requests under the Washington PRA from activity
protected by the First Amendment, stating "the PRA is not a prohibition on




8 Laws of 2010, ch. 118, §1 (a).
9 Burt v. Wash. State Dep't of Corr.. 168 Wn.2d 828, 833, 231 P.3d 196 (2009)
(holding that a person who requests public records is a necessary party and must
be joined in any action brought under RCW 42.56.540).
No. 69129-5-1/5


speech, but a disclosure requirement."10 "[Disclosure requirements may burden
the ability to speak, but they ... do not prevent anyone from speaking."11
       The     policy   of   the      PRA    requires    a   court   to     recognize

"that free and open examination of public records is in the public interest, even

though such examination may cause inconvenience or embarrassment." RCW

42.56.550(3).12 That mandate for disclosure is in the public interest and is

circumscribed by the exemptions created by the legislature. Our Supreme Court

noted that although the PRA        is a strongly worded mandate for broad disclosure

of public records,"'" . . . "where an exemption applies, disclosure is not

appropriate."13 RCW 42.56.070.
       The United States Supreme Court revealed that there is not a general

constitutional right of access to government information.14               Accordingly,
Washington is not compelled by the First Amendment to provide information to

Egan. Instead its obligation to provide the public records to him arises under

state law.15




10 561 U.S. 186, 130 S. Ct. 2811, 2813-14, 177 L. Ed. 2d 493 (2010).
11 Reed. 130 S. Ct. at 2818 (alterations in original).
12 Neighborhood Alliance of Spokane County v. County of Spokane. 172 Wn.2d
702,261 P.3d 119(2011).
13 Yakima v. Yakima Herald-Republic. 170 Wn.2d 775, 791, 246 P.3d 768 (2011)
(quoting Soter v. Cowles Publ'q Co.. 162 Wn.2d 716, 731, 174 P.3d 60 (2007)
 quoting Hearst Corp. v. Hoppe. 90 Wn.2d 123, 127, 580 P.2d 246 (1978)).
14 See Houchins v. KQED. Inc.. 438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553
(1978) (holding that the right of access to government information or sources of
information within the government's control is not mandated by the First or
Fourteenth Amendments).
15 Shero v. Citv of Grove. CM. 510 F.3d 1196, 1201 (10th Cir. 2007).
No. 69129-5-1/6


         Egan relies on Equilon Enterprises. LLC v. Consumer Cause. Inc..16 as
support for his claim that the City's action for declaratory and injunctive relief

arises from his protected speech. There, the consumer group defendant served

the oil company with notices of intent to sue for alleged violation of Proposition

65 for groundwater pollution. Instead of requesting the consumer group to clarify

its notice, the oil company filed a lawsuit for declaratory and injunctive relief,

seeking a declaration that the notice did not comply with the California Code of

Regulations.17 The trial court granted the consumer group's motion to strike the
complaint under the anti-SLAPP statute.18 The Court of Appeals and Supreme
Court agreed, ruling that the plaintiffs action for declaratory and injunctive relief

arose from the consumer group's activity in furtherance of its constitutional rights

of speech or petition. Those facts are markedly different than the facts of this

case. Here, there was a dispute over whether the City correctly denied Egan's

requests, and the City sought guidance in the manner prescribed by the PRA

statute.


         This case is more similar to a subsequent case dealing with Proposition

65.     In American Meat Institute v. Leeman.19 the California court held that a

declaratory judgment action brought by two trade associations was not a SLAPP
action, where the associations sought a determination that the Federal Meat

Inspection Act preempted Proposition 65. In so holding the court noted:




16 29 Cal. 4th 53, 52 P.3d 685 (2002)
17 Eguilon. 29 Cal. 4th at 57-58.
18
     Eguilon. 29 Cal. 4th at 57.
19 180 Cal. App. 4th 728, 739, 102 Cal. Rptr. 3d 759, 767 (2009).
No. 69129-5-1/7


               One purpose of declaratory relief is "to liquidate doubts with
       respect to uncertainties or controversies which might otherwise
       result in subsequent litigation.". . . "One test of the right to institute
       proceedings for declaratory judgment is the necessity of present
       adjudication as a guide for plaintiffs future conduct in order to
       preserve his legal rights."1201
Likewise Egan's reliance on Dove Audio. Inc. v. Rosenfeld. Mever &Susman21 is
misplaced. There, the California court held that a letter from a law firm soliciting

celebrity support for efforts to file a complaint against a publishing firm for alleged

failure to pay royalties on audio recordings of prominent celebrities fell within the

scope of the anti-SLAPP statute.         In Dove, the underlying activity was the

lawyer's letter, not a controversy between the parties.

       The fact that one party's protected activity may have triggered the other

party's cause of action does not necessarily mean the cause of action arose from

the protected activity. In Citv of Cotati v. Cashman.22 the parties disputed the
validity of a rent stabilization ordinance applicable to mobile home parks.

Owners of the mobile home parks sued the city in federal court challenging the

ordinance. In response to that suit, the city filed its own action in state court.

The owners then claimed that the city's state court action arose out of their

pursuit of the federal action which qualified as a protected petitioning activity and

therefore fell within the penumbra of the anti-SLAPP statute. In determining that

it was not a SLAPP action, the California Supreme Court explained that even if

the filing of the federal action triggered the city's decision to file its own action in

20 Leeman. 102 Cal. Rptr. 3rd at 768-69 (internal quotation marks omitted)
(quoting Mever v. Sprint Spectrum L.P., 45 Cal. 4th 634, 647, 200 P.3d 295, 303-
04 (2009)).
21 47 Cal. App. 4th 777, 54 Cal. Rptr. 2d 830 (1996).
22 29 Cal. 4th 69, 52 P.3d 695 (2002).
No. 69129-5-1/8


state court, the state court claims were not based on the federal court action.

Instead both actions arose from the parties' underlying controversy.23 Here, as in
Cashman. although the "threat" of a suit may have pushed the City to act it was

not the "gravamen" of the underlying action.

      Further, to hold that the anti-SLAPP statue would prohibit the City from

seeking declaratory and injunctive relief would vitiate the section of the PRA

expressly providing for such actions. We must read the PRA and the anti-SLAPP

statute to be in harmony:

      The principle of reading statutes in pari materia applies where
      statutes relate to the same subject matter. . . . Such statutes must
      be construed together. . . . In ascertaining legislative purpose,
      statutes which stand in pari materia are to be read together as
      constituting a unified whole, to the end that a harmonious, total
      statutory scheme evolves which maintains the integrity of the
       respective statutes.1241
Because we construe the PRA to allow the City to seek declaratory and

injunctive relief and we determine that the City's action was not primarily
concerned with limiting Egan's protected activity, we conclude the anti-SLAPP

statute does not apply here.

       We affirm the trial court's dismissal of Egan's anti-SLAPP motion.



                                                             J
WE CONCUR:




                                               3 ^ ^y-* I
23 Cashman. 52 P.3d at 703.
24 Hallauerv. Spectrum Props., Inc.. 143 Wn.2d 126, 146, 18 P.3d 540 (2001)
(internal quotation marks and citations omitted).

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