                                                                         Filed
                                                                   Washington State
                                                                   Court of Appeals
                                                                    Division Two

                                                 October 31, 2017
  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                 DIVISION II
WASHINGTON PUBLIC EMPLOYEES                       No. 49224-5-II
ASSOCIATION, UFCW LOCAL 365, a labor
organization, and PROFESSIONAL &
TECHNICAL EMPLOYEES LOCAL 17, a
labor organization,

                 Petitioners,                  PUBLISHED OPINION

     v.

WASHINGTON STATE CENTER FOR
CHILDHOOD DEAFNESS & HEARING
LOSS, and EVERGREEN FREEDOM
FOUNDATION d/b/a FREEDOM
FOUNDATION, et al.

                 Respondents.

INTERNATIONAL BROTHERHOOD OF                      No. 49230-0-II
ELECTRICAL WORKERS, LOCAL 76, a
labor organization, and UNITED
ASSOCIATION, LOCAL 32, a labor
organization,

                 Petitioners,,

     v.

STATE OF WASHINGTON, WASHINGTON
STATE DEPARTMENT OF LABOR &
INDUSTRIES, and EVERGREEN FREEDOM
FOUNDATION d/b/a FREEDOM
FOUNDATION,

                 Respondents.
No. 49224-5-II


 TEAMSTERS LOCAL UNION NO. 117, a         No. 49234-2-II
 labor organization,

                   Petitioner,

       v.

 STATE OF WASHINGTON; CHRISTOPHER
 LIU, in his capacity as DIRECTOR,
 DEPARTMENT OF ENTERPRISE
 SERVICES; DICK MORGAN, in his capacity
 as SECRETARY, DEPARTMENT OF
 CORRECTIONS; and EVERGREEN
 FREEDOM FOUNDATION d/b/a FREEDOM
 FOUNDATION,

                   Respondents.

 SERVICE EMPLOYEES INTERNATIONAL          No. 49235-1-II
 UNION HEALTHCARE 1199NW, a labor
 organization,

                   Petitioner,

       v.

 STATE OF WASHINGTON; DEPARTMENT
 OF SOCIAL AND HEALTH SERVICES, an
 agency of the State of Washington;
 DEPARTMENT OF HEALTH, an agency of
 the State of Washington; and EVERGREEN
 FREEDOM FOUNDATION d/b/a FREEDOM
 FOUNDATION, an organization,

                   Respondents.




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No. 49224-5-II


    WASHINGTON FEDERATION OF STATE                                   No. 49248-2-II
    EMPLOYEES,

                        Petitioner,

         v.

    STATE OF WASHINGTON; et al; and THE
    EVERGREEN FREEDOM FOUNDATION
    d/b/a FREEDOM FOUNDATION,

                        Respondents.

        SUTTON, J. — We are asked to determine whether the right to privacy guaranteed in

Washington Constitution article I, section 7 protects state employees’ full names associated with

their corresponding birthdates from public disclosure.         Several unions representing state

employees1 appeal the superior court’s order denying their motions for a permanent injunction

preventing the state agencies from disclosing information about their employees in response to a

public records request by the Freedom Foundation.

        We hold that article I, section 7 protects from public disclosure state employees’ full names

associated with their corresponding birthdates. Based on our holding, the trial court erred by

denying the unions’ motions for a permanent injunction preventing the release of the state

employees’ names associated with their corresponding birthdates.2



1
 The unions representing those state employees are: Teamsters Local Union No. 117; Washington
Public Employees Association, UFCW Local 365; Professional & Technical Employees Local 17;
Washington Federation of State Employees; International Brotherhood of Electrical Workers,
Local 76; United Association, Local 32; and Service Employees International Union Healthcare
1199NW (collectively referred to as the “unions”).
2
 The unions also argue seven other grounds for preventing the disclosure of employees’ names
and corresponding birthdates: (1) RCW 42.56.230(3)—invasion of privacy under the Public
Records Act (PRA); (2) RCW 42.56.070(8)—commercial purposes exemption under the PRA; (3)


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No. 49224-5-II


                                               FACTS

       The Freedom Foundation (Foundation) is a non-profit political organization. One aspect

of the Foundation’s campaign is its worker education project to inform eligible state employees

that they have a constitutional right to opt-out of paying union dues. In 2016, to further its project,

the Foundation sent Public Records Act (PRA), ch. 42.56 RCW, requests to various state agencies3

requesting disclosure of union represented employees’ full names, birthdates, and work email

addresses.

       The agencies reviewed the Foundation’s PRA requests, determined that all the requested

records were disclosable and indicated that, absent a court order, they intended to release the

requested records including the employees’ full names associated with their corresponding

birthdates and the employees’ work email addresses.

       The unions filed motions for temporary and permanent injunctions to prevent the disclosure

of the requested records. The superior court granted the motions for a temporary injunction to

prevent the agencies from disclosing most of the requested records. After a hearing on the motions

for a permanent injunction, the superior court concluded that no exemptions under the PRA applied

to the requested records and it denied the motions for a permanent injunction.




RCW 42.56.230(7)—personal information proving age under the PRA; (4) RCW 42.56.250—
PRA exception for criminal justice agencies; (5) article I, section 5 of the Washington
Constitution—freedom of association; (6) unfair labor practices; and (7) misuse of state resources.
Because we reverse the trial court’s order based on article I, section 7, we do not address the
unions’ remaining arguments.
3
  For clarity, we refer to the individual agencies collectively as “agencies” unless an agency is
specifically identified.


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No. 49224-5-II


       The unions appealed and filed an emergency motion for a stay with this court. A

commissioner of this court granted the motion for a stay only as to the state employees’ full names

associated with their corresponding birthdates.

                                            ANALYSIS

                            I. PRA INJUNCTIONS—LEGAL PRINCIPLES

       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 Wn.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 the Attorney Gen., 179 Wn.

App. 711, 719-20, 328 P.3d 905 (2014).

       The PRA mandates the broad disclosure of public records. Resident Action Council, 177

Wn.2d at 431. RCW 42.56.030 expressly requires that the PRA be “liberally construed and its

exemptions narrowly construed . . . to assure that the public interest will be fully protected.” When

evaluating a PRA claim, we must “take into account the policy of [the PRA] 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).

       Under RCW 42.56.070(1), a government agency must disclose public records upon request

unless a specific exemption in the PRA applies or some other statute applies that exempts or

prohibits disclosure of specific information or records. Ameriquest Mortg. Co. v. Office of the

Attorney Gen., 177 Wn.2d 467, 485-86, 300 P.3d 799 (2013). RCW 42.56.540 allows one to seek

an injunction to prevent the disclosure of public records under the PRA. RCW 42.56.540 states:



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No. 49224-5-II


               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 and irreparably damage any person, or would substantially and
       irreparably damage vital government functions.

Thus, for a person named in a record to obtain an injunction preventing disclosure of public records

under the PRA, the person must show that (1) the record in question specifically pertains to that

person, (2) an exemption applies, (3) the disclosure would not be in the public interest, and (4)

disclosure would substantially and irreparably harm that party or a vital government function.

Ameriquest, 177 Wn.2d at 487.

       In addition to the requirements in RCW 42.56.540, a party generally must establish three

common law requirements to obtain permanent injunctive relief: (1) a clear legal or equitable right,

(2) a well-grounded fear of immediate invasion of that right, and (3) that the act complained of

will result in actual and substantial injury. Huff v. Wyman, 184 Wn.2d 643, 651, 361 P.3d 727

(2015). As we recently recognized:

       It is unclear how these [common law] requirements relate to the injunction
       requirements of RCW 42.56.540, and no case has applied these general
       requirements in a RCW 42.56.540 case. However, the first two requirements for a
       permanent injunction relate to the existence of an exemption and the third
       requirement is consistent with a similar requirement in RCW 42.56.540.

Service Employees International Union (SEIU) Healthcare 775NW v. Dep’t of Soc. & Health

Servs., 193 Wn. App. 377, 393, 377 P.3d 214, review denied, 186 Wn.2d 1016 (2016). We review

orders on injunctions under the PRA de novo. Robbins, 179 Wn. App. at 720.




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No. 49224-5-II


                                  II. CONSTITUTIONAL EXEMPTION

       The state constitution may exempt certain records from production because it supersedes

contrary statutory laws. White v. Clark County, 188 Wn. App. 622, 631, 354 P.3d 38 (2015),

review denied, 185 Wn.2d 1009 (2016). Article I, section 7 provides that “[n]o person shall be

disturbed in his private affairs, or his home invaded, without authority of law.” CONST. art. 1 § 7.

We recently addressed the application of article I, section 7 to the PRA in SEIU Local 925 v.

Freedom Foundation. We explained,

               Interpreting and applying article I, section 7 requires a two-part analysis.
       The first step requires determining whether the State unreasonably intruded into a
       person’s private affairs. If a person’s private affairs are not disturbed, our analysis
       ends and there is no article I, section 7 violation. If, however, a private affair has
       been disturbed, the second step is to determine whether authority of law, such as a
       valid warrant, justifies the intrusion.

197 Wn. App. 203, 222, 389 P.3d 641 (2016) (internal citations and quotation marks omitted).

The person challenging disclosure bears the burden of demonstrating the disturbance to his or her

private affairs. SEIU 925, 197 Wn. App. at 223.

       Private affairs are determined by considering either (1) the historical treatment of the

interest asserted, or (2) whether the expectation of privacy is one that a citizen of this State is

entitled to hold. SEIU 925, 197 Wn. App. at 222. When we analyze whether the expectation of

privacy is one that a citizen of this state is entitled to hold, we review “(1) the nature and extent of

the information that may be obtained as a result of the governmental conduct and (2) the extent

that the information has been voluntarily exposed to the public.” SEIU 925, 197 Wn. App. at 222.

We also stated,




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No. 49224-5-II


               Private affairs are those that reveal intimate or discrete details of a person’s
       life. What a person voluntarily exposes to the general public is not considered part
       of a person’s private affairs.

SEIU 925, 197 Wn. App. at 222-23 (internal citations omitted). A non-exclusive list of intimate

or discrete details includes: (1) one’s whereabouts or co-guests at a motel, (2) patient names and

diagnoses in mental health facilities, (3) trade secrets and related commercial information, (4)

personal financial data, and (5) information regarding personal sexual matters. SEIU 925, 197

Wn. App. at 227.

       Here, the unions do not argue that there is any historical protection for state employees’

full names associated with their corresponding birthdates. However, a constitutional challenge

allows us to consider “the nature and extent of the information that may be obtained as a result of

the governmental conduct.” SEIU 925, 197 Wn. App. at 222. The unions argue that by publically

disclosing the requested information, a person could discover personal financial information,

commit identity theft, or find confidential information such as the identified state employees’

personal addresses and personal telephone numbers. Therefore, they argue that government

disclosure exposes state employees to the risk of their private affairs and intimate details being

exposed to the public.

       We recognize that people do expose their names and corresponding birthdates to some

extent. However, these disclosures are typically at the person’s discretion and control. Public

disclosure of state employees’ full names associated with their corresponding birthdates reveals

personal and discrete details of the employees’ lives. Such disclosure to the public would not be

voluntary or within the employee’s control. Once disclosed to the public domain, these employees

would potentially be subject to an ongoing risk of identity theft and other harms from the disclosure



                                                  8
No. 49224-5-II


of this personal information, such as their personal addresses and personal telephone numbers. A

citizen of this state would reasonably expect that personal information, such as the public

disclosure of his or her full name associated with his or her corresponding birthdate, that would

potentially subject them to identity theft and other harms, would remain private. Therefore, we

hold that, under article 1, section 7, a state employee is entitled to an expectation of privacy in his

or her full name associated with his or her corresponding birthdate.

       The Foundation argues that our Supreme Court’s opinion in Nissen v. Pierce County, 183

Wn.2d 863, 357 P.3d 45 (2015), categorically precludes the unions from making any claim that

information contained in public records is constitutionally protected. The Foundation relies on a

single sentence in Nissen in which the court stated, “Because an individual has no constitutional

privacy interest in a public record, Lindquist’s challenge is necessarily grounded in the

constitutional privacy interest he has in personal information comingled with those public

records.” Nissen, 183 Wn.2d at 883 (foot note omitted). But we do not read Nissen to impose a

categorical prohibition against claiming that information contained within public records may be

constitutionally protected.

       The sentence that the Foundation relies on is dicta. The issue Nissen addressed in its

analysis was the extent to which private devices could be searched for public records. Nissen

offers no comment on the extent to which article I, section 7 creates an expectation of privacy to

information contained within public records. Moreover, the court’s statement in Nissen was made

within the context of rejecting the county’s claim that article I, section 7 categorically prohibited

searching a government employee’s private devices for public records. We read the statement on

which the Foundation relies as a statement that there is no categorical constitutional protection



                                                  9
No. 49224-5-II


related to a public records request; consequently, there can be no categorical prohibition to

claiming an expectation of privacy in information contained within public records. Because we

perform an individualized analysis of the information requested in this case, our decision does not

create a categorical constitutional protection and, therefore, it is not in conflict with our Supreme

Court’s opinion in Nissen.

       The Foundation also notes that the statement in Nissen was recently adopted in West v.

Vermillion, 196 Wn. App. 627, 384 P.3d 634 (2016), cert. denied, 2017 WL 2869953 (2017).

However, nothing in West expands the holding in Nissen to the situation presented here. Like

Nissen, West addressed the extent to which an agency employee is required to search their personal

devices for public records. West, 196 Wn. App. at 635-36. West does not address whether there

can be an expectation of privacy in information contained within public records. Rather, it

recognizes the holding in Nissen that there is no categorical constitutional protection for public

records that are contained on private devices.         Accordingly, West does not support the

Foundation’s argument that there is a categorical prohibition against claiming a constitutionally

protected expectation of privacy in information contained in public records.

       Because we conclude that employees have a constitutionally protected expectation of

privacy in their full names associated with their corresponding birthdates, we must next determine

whether “authority of law . . . justifies the intrusion.” The Foundation argues that the PRA is the

authority of law which justifies intrusion into the employees’ privacy.

       No court has addressed when the PRA would justify, rather than allow, an intrusion into a

constitutionally protected privacy interest. “Justify” means “to prove or show to be valid, sound,

or conforming to fact or reason” and “to show to have had a sufficient legal reason.” WEBSTER’S



                                                 10
No. 49224-5-II


THIRD NEW INTER-NATIONAL DICTIONARY 1228 (2002). Therefore, showing the intrusion is

justified requires more than simply showing that the intrusion is permitted.

       The PRA has a comprehensive stated purpose:

               The people of this state do not yield their sovereignty to the agencies that
       serve them. The people, in delegating authority, do not give their public servants
       the right to decide what is good for the people to know and what is not good for
       them to know. The people insist on remaining informed so that they may maintain
       control over the instruments that they have created.

RCW 42.56.030.       Public disclosure of state employees’ full names associated with their

corresponding birthdates does not inform the people of facts about an “instrument” they have

created or provide information that allows the people to maintain control over those instruments.

And public disclosure of this information would reveal discrete personal details of state employees

not connected to their role as public servants. Thus, the purpose of the PRA is not served by the

public disclosure of this information. Therefore, although the PRA may allow the disclosure of

the information, the PRA does not justify the intrusion into the state employees’ constitutionally

protected expectation of privacy in their full names associated with their corresponding birthdates.

                         III. OTHER REQUIREMENTS FOR AN INJUNCTION

       Because we hold that the unions have met their burden to show that state employees have

a constitutionally protected expectation of privacy in their full names associated with their

corresponding birthdates, we also address whether the unions have also satisfied the two remaining

requirements for a PRA permanent injunction. In addition to demonstrating that the information

is exempt, the unions must also show that the disclosure would not be in the public interest and

would substantially and irreparably harm that party or a vital government function. Ameriquest,

177 Wn.2d at 487. Moreover, as stated above, to obtain permanent injunctive relief, a party



                                                11
No. 49224-5-II


generally must establish three elements: (1) a clear legal or equitable right, (2) a well-grounded

fear of immediate invasion of that right, and (3) that the act complained of will result in actual and

substantial injury. Huff, 184 Wn.2d at 651.

       Here, the unions meet the remaining PRA requirement because the public disclosure of

birthdates of individually identified state employees is not in the public interest. The birthdates of

individually identified state employees are not in the public interest because they do not inform

the public of facts related to a government function. Moreover, the disclosure would substantially

and irreparably harm the identified state employees. Public disclosure of state employees’

personal information, which will make the information available to anyone, invades their

constitutionally protected expectation of privacy, and exposes them to an ongoing risk of identity

theft and other potential personal harms.

       The unions have also met their burden to satisfy the three general requirements for a

permanent injunction. The state employees have a clear and equitable right because they have a

constitutionally protected expectation of privacy in their full names associated with their

corresponding birthdays. And, the state employees have a well-grounded fear of immediate

invasion of that right because the agencies who have received the PRA requests have indicated

that they will disclose the requested records unless prevented by court order. And, as discussed

above, public disclosure of this information will result in actual and substantial injury, will invade

their constitutionally protected expectation of privacy, and will expose them to an ongoing risk of

identity theft and other potential personal harms.




                                                 12
No. 49224-5-II


       We hold that state employees have a constitutionally protected expectation of privacy in

their full names associated with their corresponding birthdates. Because the employees have a

constitutionally protected expectation of privacy, and the unions have satisfied the requirements

for an order granting permanent PRA injunctions, the trial court erred by denying the unions’

motions for permanent injunctions. Accordingly, we reverse and remand for further proceedings

consistent with this opinion.



                                                    SUTTON, J.
 We concur:



MAXA, A.C.J.




LEE, J.




                                               13
