                                                                      FILED
                                                                  OCTOBER 15, 2019
                                                             In the Office of the Clerk of Court
                                                            WA State Court of Appeals, Division III

            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

ANDREA WILKERSON,                               )         No. 36054-7-III
                                                )
                      Respondent,               )
                                                )
       v.                                       )
                                                )
STATE OF WASHINGTON, by and                     )
through its agency subdivision,                 )         UNPUBLISHED OPINION
DEPARTMENT OF CORRECTIONS,                      )
                                                )
                      Appellant,                )
                                                )
EUGENE MEDUTIS,                                 )
                                                )
                      Respondent.               )

       PENNELL, A.C.J. — The Department of Corrections (DOC) appeals an order

enjoining disclosure of records pertaining to a workplace investigation of employee

Andrea Wilkerson. The order was based on the superior court’s determination that the

investigation materials did not meet the definition of public records under the Public

Records Act (PRA), chapter 42.56 RCW. We disagree and therefore reverse. This matter

is remanded for in camera review of each individual record to determine whether an

exemption to disclosure applies. If an exemption does apply, redaction to the greatest

extent possible shall be favored over withholding. Furthermore, any order enjoining

disclosure of records shall apply only to the parties to this litigation.
No. 36054-7-III
Wilkerson v. Dep’t of Corr.


                                         FACTS

       The circumstances leading to this appeal began when DOC employee Eugene

Medutis made a PRA request for documents regarding a disciplinary investigation of

DOC employee Andrea Wilkerson. The DOC received Mr. Medutis’s request and

assigned it a “public records tracking number PRU-50301.” Clerk’s Papers at 33. The

request was construed as seeking disciplinary hearing and investigative materials related

to an allegation that Ms. Wilkerson had provided personal information to an offender.

       The DOC’s initial search uncovered 237 pages of responsive records, including “a

work safety plan, interview summaries of a number of staff and offenders related to a just

cause investigation, a memo of concern, and incident reports related to a just cause

investigation where no formal disciplinary action was taken.” Id. at 29-30. Except for a

small amount of redactions and three pages deemed exempt as performance evaluations

without any specific misconduct noted, the DOC determined the remainder of the pages

were releasable records under the PRA. The DOC also noted the records were the first

installment of records in response to Mr. Medutis’s records request, and did not include

the entirety of potentially responsive records. In accordance with RCW 42.56.540, the

DOC notified Ms. Wilkerson of Mr. Medutis’s records request.




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No. 36054-7-III
Wilkerson v. Dep’t of Corr.


       Ms. Wilkerson filed a petition for injunctive and declaratory relief in Walla Walla

County Superior Court, requesting the DOC be prohibited from releasing her records

based on exceptions or exemptions to the PRA. She also filed a motion to enjoin the DOC

from releasing the records as such a release would cause irreparable injury. In her

petition, Ms. Wilkerson alleged Mr. Medutis requested the release of the records solely to

harass her, the release of such records had no public merit, and releasing the information

placed her at risk.

       The superior court entered a temporary ex parte restraining order enjoining the

DOC from releasing records responsive to Mr. Medutis’s PRA request. After a contested

hearing and in camera review, the court issued a permanent injunction. The injunction

“permanently restrained and enjoined [the DOC] from releasing the records identified as

PRU #50301, pages 1-237, herein, and any additional pages thereafter located.” Id. at 65.

The superior court also concluded that “[b]ased on the Court’s review, these records are

not public records as defined by Chapter 42.56 RCW and its interpretive caselaw.” Id.

       The DOC appealed the superior court’s permanent injunction order.

                                       ANALYSIS

       The PRA mandates broad disclosure of public records upon request. Resident

Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 431, 327 P.3d 600 (2013). A


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No. 36054-7-III
Wilkerson v. Dep’t of Corr.


threshold issue under the PRA is whether a requested document qualifies as a public

record. A public record is “any [1] writing [2] containing information relating to the

conduct of government or the performance of any governmental or proprietary function

[3] prepared, owned, used, or retained by any state or local agency regardless of physical

form or characteristics.” RCW 42.56.010(3). This definition must be “liberally construed”

in favor of application. RCW 42.56.030. It casts a wide net and “subjects ‘virtually any

record related to the conduct of government’ to public disclosure.” Nissen v. Pierce

County, 183 Wn.2d 863, 874, 357 P.3d 45 (2015) (quoting O’Neill v. City of Shoreline,

170 Wn.2d 138, 147, 240 P.3d 1149 (2010)). Whether a particular document meets the

definition of a public record is a matter we review de novo. RCW 42.56.550(3); Nissen,

183 Wn.2d at 872.

       The materials gathered in response to Mr. Medutis’s PRA request readily meet the

broad public records definition. The 237 pages of documents are undeniably writings as

defined by the PRA. RCW 42.56.010(4). In addition, because the documents concern an

investigation into Ms. Wilkerson’s activities as a public employee, they contain

information relating to governmental conduct. See Predisik v. Spokane Sch. Dist. No. 81,

182 Wn.2d 896, 905, 346 P.3d 737 (2015) (“A public employer’s investigation is an act

of the government.”). Finally, the records were prepared, owned, used, and retained by


                                             4
No. 36054-7-III
Wilkerson v. Dep’t of Corr.


the DOC, which is a government agency. Thus, the responsive records meet all three

criteria of a public record. The superior court’s decision to the contrary was erroneous

and must be reversed.

       While the responsive documents in this case meet the public records definition,

that does not necessarily mean they must be disclosed. The PRA exempts certain classes

of materials from disclosure. However, unlike the public records definition, the PRA’s

exemptions must be narrowly construed. RCW 42.56.030. A party seeking to prohibit

disclosure of public records under an exemption has the burden of establishing its

application. Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 35, 769 P.2d 283

(1989).

       Assessing whether an exemption applies under the PRA requires a document-by-

document examination. Predisik, 182 Wn.2d at 906. Because the documents at issue here

are not part of the record on review, we cannot assess whether an exemption or

exemptions may apply. Instead, remand is appropriate so the superior court can make an

exemption determination after reviewing the individual records in camera.

       If, on remand, a statutory exemption is deemed applicable, the superior court must

further assess whether the exemption can be adequately addressed through redaction as

opposed to wholesale withholding of records. For example, employment investigation


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No. 36054-7-III
Wilkerson v. Dep’t of Corr.


records sometimes implicate the right to privacy under RCW 42.56.230(3). See Bellevue

John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 221, 189 P.3d 139 (2008)

(The right to privacy requires redaction of public employee’s names from investigation

records involving unsubstantiated allegations of sexual misconduct.). But see Morgan v.

City of Federal Way, 166 Wn.2d 747, 756, 213 P.3d 596 (2009) (The right to privacy

does not require redaction when allegations of misconduct merely pertain to

“‘inappropriate behavior’” that is “nowhere near as offensive as allegations of sexual

misconduct with a minor.”).

       But even when privacy is an issue, it is unlikely the PRA will permit withholding

of records in their entirety. Predisik, 182 Wn.2d at 905 (“[T]he PRA does not recognize a

right of privacy in the mere fact that a public employer is investigating an employee.”);

Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 415-18, 259 P.3d

190 (2011). Instead, the PRA contemplates protecting the right to privacy through

redaction of personal information, such as names and identifying information, prior to

disclosure of public records. RCW 42.56.210(1). 1




       1
         This limited right of redaction applies even when the identity of the person
asserting a privacy protection is known or readily discernable. See Bainbridge Island
Police Guild, 172 Wn.2d at 412.

                                             6
No. 36054-7-III
Wilkerson v. Dep 't of Corr.


                                     CONCLUSION

       Because the records at issue in this case qualify as public records, the superior

court's permanent injunction order must be reversed. This matter is remanded for further

proceedings, including an in camera assessment of whether the individual records are

subject to a PRA exemption. If an exemption applies, it shall be narrowly construed to the

greatest extent practicable in favor of redaction, as opposed to withholding. Any

injunction issued on remand shall be document-specific and binding against only "the

parties to the action, their officers, agents, servants, employees, and attorneys, and upon

those persons in active concert or participation with them." CR 65(d).

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

                                              Q_            ,S>._   I ~
                                           Pennell, A.CJ.
WE CONCUR:




       2
         The Honorable Bradley Maxa is a Court of Appeals, Division Two, judge sitting
in Division Three under CAR 2l(a).

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