                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         July 25, 2017




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    TIMOTHY WHITE,                                                  No. 49599-6-II

                         Appellant,

          v.                                                   PUBLISHED OPINION

    CLARK COUNTY,

                         Respondent.


         MAXA, A.C.J. – Timothy White submitted a Public Records Act (PRA)1 request to Clark

County, requesting production of ballots cast in the November 2013 election. After the County

declined to produce the ballots, White filed a PRA action and a motion to show cause to compel

production. White appeals the trial court’s ruling that the ballots were exempt from disclosure

under the PRA.

         White previously had submitted – a day after the election – a PRA request to Clark

County for pre-tabulated ballot images from the November 2013 election. This court held that

the County was not required to produce pre-tabulated ballots because article VI, section 6 of the

Washington Constitution, various sections of Title 29A RCW, and secretary of state regulations

together constituted an “other statute” exemption to the PRA under RCW 42.56.070(1) for those



1
    Chapter 42.56 RCW.
No. 49599-6-II


ballots. White v. Clark County, 188 Wn. App. 622, 631, 637, 354 P.3d 38 (2015), review denied,

185 Wn.2d 1009 (2016) [White I]. Division One of this court issued a similar ruling regarding

White’s identical PRA requests to two other counties. White v. Skagit County, 188 Wn. App.

886, 898, 355 P.3d 1178 (2015), review denied, 185 Wn.2d 1009 (2016) [White II].

       We acknowledge that these cases do not directly control White’s current PRA request

because he now is requesting ballots more than 60 days after they were tabulated. But we hold

White is not entitled to disclosure of the requested records because (1) both RCW 29A.60.110

and WAC 434-261-045 create an “other statute” exemption that applies to election ballots even

after the minimum 60-day retention period after tabulation, (2) whether concerns about

jeopardizing the secrecy of the vote could have been addressed by redacting certain information

is immaterial because the “other statute” exemption applies to the entire ballot, and (3) RCW

42.56.210(2) does not override this exemption because White cannot show that withholding the

ballots is “clearly unnecessary” to protect the vital government interest in preserving the voters’

right to absolute secrecy of their votes.

       Accordingly, we affirm the trial court’s denial of White’s motion to show cause and

dismissal of White’s PRA action.

                                              FACTS

       On July 2, 2015, White sent a PRA request to the County for election records relating to

the November 2013 general election, including paper ballots and images of ballots “received,

cast, voted, or otherwise used.”2 Clerk’s Papers (CP) at 16. The County responded that it could



2
 We refer to both paper ballots and ballot images collectively as “ballots.” Electronic images of
ballots constitute “ballots” under RCW 29A.04.008(1)(c). White I, 188 Wn. App. 632.


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No. 49599-6-II


not release the ballots because the records were subject to the Washington Constitution’s

mandate of absolute secrecy of the vote. The County also cited both the White I and White II

decisions as support for its conclusion that the ballots were exempt from disclosure. The County

did release almost 9,000 pages of other election records.

       White filed a complaint alleging that the County had violated the PRA and seeking to

compel production of the requested ballots. At the same time, White filed a motion under RCW

42.56.550(1) requiring the County to show cause why the trial court should not order production

of the requested ballots. The court ruled that “voted ballots are exempt from production under

the PRA and Clark County’s refusal to provide copies of the requested ballots is proper based on

the applicable constitutional, statutory and case law.” CP at 518. Therefore, the court concluded

that the County complied with the PRA in its response to White’s request, denied White’s

motion to show cause, and dismissed White’s PRA complaint.

       White appeals the trial court’s denial of relief under the PRA.

                                           ANALYSIS

A.     PRA EXEMPTION FOR TABULATED ELECTION BALLOTS

       White argues that the County wrongfully failed to produce the ballots he requested

because the “other statute” exemption for pre-tabulated ballots does not apply to a request for

tabulated ballots made more than 60 days after tabulation. We hold that both RCW 29A.60.110

and WAC 434-261-045 provide an “other statute” exemption for tabulated ballots even beyond

60 days after tabulation.




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No. 49599-6-II


       1.    Legal Principles

       The PRA mandates the broad disclosure of public records. John Doe A v. Wash. State

Patrol, 185 Wn.2d 363, 371, 374 P.3d 63 (2016). Therefore, an agency has an affirmative

obligation to disclose records requested under the PRA unless a specific exemption applies. Id.

at 371-72. And we must liberally construe the PRA in favor of disclosure and narrowly construe

its exemptions. RCW 42.56.030; John Doe A, 185 Wn.2d at 371. The agency bears the burden

of establishing that an exemption to production applies. RCW 42.56.550(1); Sargent v. Seattle

Police Dep’t, 179 Wn.2d 376, 385-86, 314 P.3d 1093 (2013).

       A requesting party denied disclosure may move for a show cause hearing, at which the

burden of proof is on the agency to show that its denial was proper. RCW 42.56.550(1), (3). We

review the agency’s actions de novo. RCW 42.56.550(3).

       An agency may lawfully withhold production of records if a specific exemption applies.

White I, 188 Wn. App. at 630. There are three sources of PRA exemptions: (1) enumerated

exemptions contained in the PRA itself, (2) any “other statute” that exempts or prohibits

disclosure, and (3) the Washington Constitution. Id. at 630-31.

       The “other statute” exemption is found in RCW 42.56.070(1): “Each agency, in

accordance with published rules, 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.” We will find

an RCW 42.56.070(1) “other statute” exemption “only when the legislature has made it

explicitly clear that a specific record, or portions of it, is exempt or otherwise prohibited from

production.” John Doe A, 185 Wn.2d at 373. The statute “does not need to expressly address



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No. 49599-6-II


the PRA, but it must expressly prohibit or exempt the release of records.” Id. at 372. Whether a

statute is an “other statute” under RCW 42.56.070(1) is a question of law that we review de

novo. Id. at 371.

       2.    Limited Holding of White I

       White is correct that White I does not directly control the resolution of this case. In

White I, we noted that RCW 29A.40.110(2) addresses ballot security for the period between

receipt of the ballot and the beginning of ballot processing, and RCW 29A.60.110 addresses

ballot security after tabulation. 188 Wn. App. at 633-34. White’s request for pre-tabulated

ballots in White I involved a “gap” in ballot security for the period from the beginning of

processing until tabulation. Id. at 634. We held that an “other statute” exemption existed for

pre-tabulated ballots based on these statutes and applicable secretary of state regulations. Id. at

637.

       But we did not address in White I whether an exemption existed for tabulated ballots,

stating only that ballot images must be kept secure until “at least” 60 days after tabulation. Id. at

637.

       3.    “Other Statute” Exemption Under RCW 29A.60.110

       RCW 29A.60.110 expressly addresses the security and secrecy of tabulated ballots.

          Immediately after their tabulation, all ballots counted at a ballot counting center
       must be sealed in containers that identify the primary or election and be retained
       for at least sixty days or according to federal law, whichever is longer.

          In the presence of major party observers who are available, ballots may be
       removed from the sealed containers at the elections department and consolidated
       into one sealed container for storage purposes. The containers may only be opened
       by the canvassing board [1] as part of the canvass, [2] to conduct recounts, [3] to
       conduct a random check under RCW 29A.60.170, or [4] by order of the superior
       court in a contest or election dispute.


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No. 49599-6-II


RCW 29A.60.110 (emphasis added). This statute unambiguously requires that tabulated ballots

be kept in sealed containers and can be opened by the canvassing board only in one of four

specified situations.

       White makes three arguments against treating RCW 29A.60.110 as an “other statute”

exemption. First, he argues that once the 60-day retention period required by RCW 29A.60.110

has expired, the ballots must become available for public release pursuant to a PRA request. But

the 60-day period does not apply to keeping the tabulated ballots in sealed containers. That

period applies to how long the sealed ballots must be retained. In other words, the sealed ballots

may be discarded after 60 days.

       Nothing in the language of RCW 29A.60.110 suggests that the ballots need only be kept

secure for 60 days. RCW 29A.60.110 contains no time limit for keeping the ballots in sealed

containers. Therefore, under the plain statutory language, the agency has two choices once the

60-day period ends: the ballots must be kept in sealed containers indefinitely unless one of the

four specified situations arises or the ballots must be discarded. Neither choice allows the ballots

to be disclosed to a requesting person.

       Second, White argues that Title 29A RCW explicitly exempts at least six types of

documents from the PRA, but there is no explicit exemption for tabulated ballots. He claims that

this omission indicates that the legislature did not intend for ballots to be exempt from the PRA.

But as Division One noted in White II, the legislature has also “specified that certain nonballot

election records may be disclosed to the public.” 188 Wn. App. at 897 (emphasis added). The

court noted that it would be superfluous for the legislature to single out specific types of

elections records as subject to disclosure unless they were viewed as exceptions to the general



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No. 49599-6-II


rule of nondisclosure. Id. Further, because under RCW 29A.60.110 is clear that tabulated

ballots must remain sealed, there was no reason for the legislature to include an explicit

exemption.

       Third, White argues that if simply requiring secure storage of records amounts to an

exemption, then most records would be exempt from disclosure under the PRA. He notes that

RCW 40.14.020(4) requires the state archivist to maintain the security of all state public records

but does not thereby exempt all state public records from disclosure. However, White overlooks

that RCW 29A.60.110 does not simply require sealed storage; it also includes unambiguous

language stating that the sealed containers may only be opened in four specific situations. It is

that restriction on accessing the ballots that creates the exemption.

       The provisions of RCW 29A.60.110 are inconsistent with disclosing copies of tabulated

ballots under the PRA. Therefore, we hold that RCW 29A.60.110 constitutes an express “other

statute” exemption for tabulated ballots.

       4.    “Other Statute” Exemption Under WAC 434-261-045

       In addition to RCW 29A.60.110, WAC 434-261-045 also provides an “other statute”

exemption to the PRA. The legislature has required the secretary of state to make rules

regarding election “[s]tandards and procedures to guarantee the secrecy of ballots.” RCW

29A.04.611(34). Under that authority, the secretary of state enacted WAC 434-261-045, which

provides:

       Received ballots and ballot images must be maintained in secure storage except
       during processing, duplication, inspection by the canvassing board, or tabulation.
       Secure storage must employ the use of numbered seals and logs, or other security
       measures that will detect any inappropriate access to the secured materials. Ballots
       and ballot images may only be accessed in accordance with RCW 29A.60.110 and
       29A.60.125.


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No. 49599-6-II


(Emphasis added.)

       WAC 434-261-045 unambiguously requires that ballots be kept in secure storage at all

times other than during processing, duplication, inspection, and tabulation and states that they

can only be accessed in accordance with RCW 29A.60.110 and 29A.60.125. As discussed

above, RCW 29A.60.110 allows for access only in four specified situations. And RCW

29A.60.125 provides procedures for handling damaged ballots, and expressly states that “ballots

must be sealed in secure storage at all times, except during duplication, inspection by the

canvassing board, or tabulation.”

       White argues that WAC 434-261-045 cannot be an “other statute” because state

administrative rules cannot provide a PRA exemption. But in White I, this court considered and

rejected this argument. 188 Wn. App. at 636. The court noted that although an agency cannot be

allowed to determine what records are exempt from the PRA, the secretary of state did not

attempt to regulate disclosure or interpret the disclosure requirements of the PRA when

promulgating WAC 434-261-045. Id. Instead, the secretary of state “implemented regulations to

ensure ballot security and secrecy during processing, pursuant to the express enabling provisions

of RCW 29A.04.611.” Id.

       The provisions of WAC 434-261-045 are inconsistent with disclosing copies of tabulated

ballots under the PRA. Under White I, this regulation can qualify as an “other statute” for PRA

purposes. 188 Wn. App. at 635-36. Therefore, we hold that WAC 434-261-045 constitutes an

express “other statute” exemption for tabulated ballots and ballot images.




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No. 49599-6-II


       5.   Redaction is Immaterial

       White argues that even if the ballots are subject to an exemption to protect the identity of

individual voters, the County was required to produce the ballots because it could have redacted

any identifying marks that could identify individual voters. We disagree.

       As discussed above, we hold that tabulated ballots are exempt in their entirety from

disclosure under the PRA. RCW 29A.60.110 and WAC 434-261-045 provide categorical

exemptions, not conditional ones. See Resident Action Council v. Seattle Hous. Auth., 177

Wn.2d 417, 434, 327 P.3d 600 (2013) (noting categorical exemptions limit a particular type of

information or record). As a result, whether the ballots can be redacted to address specific

secrecy concerns is immaterial. See id. at 433, 437 (“[I]f a type of record is exempted, then

meaningful redaction generally is impossible,” unless redaction will transform the record into an

entirely different type of record). The ballots are exempt from production without qualification.

       Here, RCW 29A.60.110 and WAC 434-261-045 govern handling of “ballots,” which

means that their exemptions apply to the ballots in their entirety. And no amount of redaction

will transform the ballots into some other type of record. Therefore, we reject White’s redaction

argument.

B.     DISREGARDING THE PRA EXEMPTION

       White argues that even if the ballots are subject to an “other statute” PRA exemption, the

County was required to produce them under RCW 42.56.210(2) because nondisclosure is not

necessary to protect privacy or a vital government function. We disagree.

       RCW 42.56.210(2) states that the release of specific records that are otherwise exempt

from disclosure “may be permitted if the superior court in the county in which the record is



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No. 49599-6-II


maintained finds, after a hearing . . . that the exemption of such records is clearly unnecessary to

protect any individual’s right of privacy or any vital governmental function.” (Emphasis added.)

Such a finding overrides the PRA exemption and requires the agency to produce the requested

records. White I, 188 Wn. App. at 637.

       White argues that exempting ballots three years after the election in which they were cast

is unnecessary to protect privacy and vital government interests. He asserts that production

would pose no risk to ballot anonymity and that there is no risk of election fraud or tampering

when the election is over. He also points out that images of individual ballots have been

displayed on election-related websites without revealing voter identity. However, White fails to

show that withholding the ballots is “clearly unnecessary” to protect any individual’s right to

privacy or any vital governmental function. RCW 42.56.210(2).

       Article VI, section 6 of the Washington Constitution provides voters “absolute secrecy”

in their votes. (Emphasis added.) Washington statutes and regulations also protect this right

and ensure that ballots are secure. See White I, 188 Wn. App. at 638. “Preserving the integrity

and secrecy of votes and the security of election ballots clearly is a vital government function.”

Id.; see also White II, 188 Wn. App. at 898.

       Accordingly, we reject White’s argument that the PRA exemption for election ballots

should be disregarded under RCW 42.56.210(2).

C.     ATTORNEY FEES

       White seeks recovery of his reasonable attorney fees for work performed in the trial court

and on appeal. RCW 42.56.550(4) provides that any person who prevails against an agency in

any action in the courts seeking the right to inspect or copy any public record shall be awarded



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No. 49599-6-II


reasonable attorney fees. Because White is not a prevailing party, he is not entitled to attorney

fees either in the trial court or on appeal.

                                               CONCLUSION

        We affirm the trial court’s denial of White’s show cause motion and dismissal of White’s

PRA action.



                                                        MAXA, A.C.J.



 We concur:




 LEE, J.




 SUTTON, J.




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