Wash. Educ. Ass'n v. Wash. State Dep't of Ret. Sys.

507 P.3d 1

WASHINGTON EDUCATION ASSOCIATION, SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 925, International Union of Operating Engineers, Local 609, International Brotherhood of Teamsters Local 117, Washington Public Employees Association, Washington Nurses Association, PROTEC 17, American Federation of Teachers, Washington and Washington Federation of State Employees, labor organizations, Respondents,

v.WASHINGTON STATE DEPARTMENT OF RETIREMENT SYSTEMS and Washington Office of Financial Management, Appellants,Freedom Foundation, Petitioner.

No. 83343-0-I

Court of Appeals of Washington, Division 1.

FILED March 28, 2022

Sydney Paige Phillips, Attorney at Law, P.O. Box 552, Olympia, WA, 98507-0552, Robert Alan Bouvatte Jr., Robert A. Bouvatte, PLLC, P.O. Box 14185, Tumwater, WA, 98511-4185, for Appellant.

Kathleen Phair Barnard, Barnard Iglitzin & Lavitt LLP, 18 W Mercer St. Ste, 400, Seattle, WA, 98119-3971, Harriet Kay Strasberg, Attorney at Law, 203 4th Ave. E Ste. 520, Olympia, WA, 98501-1190, James Shawn Horlacher, Attorney General's Office, P.O. Box 40145, Olympia, WA, 98504-0145, Edward Earl Younglove III, Younglove & Coker, PLLC, P.O. Box 7846, 1800 Cooper Point Rd Sw # 16, Olympia, WA, 98507-7846, Evelyn Fielding Lopez, Washington Attorney General's Office, David Christopher Moon, Attorney at Law, P.O. Box 40123, Olympia, WA, 98504-0123, for Respondents.

PUBLISHED OPINION

Andrus, A.C.J.

¶ 1 The Freedom Foundation (Foundation) challenges a preliminary injunction prohibiting the Department of Retirement Services (DRS) and the Office of Financial Management (OFM) from releasing the full names and dates of birth of public employees under RCW 42.56.230(3) of the Public Records Act (PRA).

¶ 2 We conclude that a recent amendment to RCW 42.56.250(8) prohibits DRS and OFM from disclosing the month and year of birth of any public employee unless the Foundation can establish that it is a member of the "news media." We cannot resolve that factual issue here because it has yet to be litigated below. If the Foundation is able to meet its burden of proof under RCW 42.56.250(8), then the trial court's determination that the data is exempt from disclosure under RCW 42.56.230(3) ’s privacy exemption would remain at issue. We therefore conclude the amendment of RCW 42.56.250(8) does not render this appeal moot. We further conclude that the trial court erred in holding that public employee birthdates, when linked to their names, are exempt under RCW 42.56.230(3).

¶ 3 We reverse the preliminary injunction to the extent it is premised on RCW 42.56.230(3). We remand for the trial court to determine whether to enter a preliminary injunction based on RCW 42.56.250(8) and to determine whether the Foundation qualifies as "news media" and is entitled to the requested data under that statutory provision.

FACTS

¶ 4 The Foundation is a nonprofit organization seeking to promote "individual liberty, free enterprise, and limited, accountable government." The Foundation advocates for public sector labor union reform and transparency, a part of which involves informing public employees of their constitutional and statutory rights to opt out of union membership. To identify its public employee audience, the Foundation has submitted several PRA requests to government agencies seeking the personally identifying information of unionized employees.

¶ 5 Unions representing these employees have resisted the Foundation's efforts by initiating lawsuits seeking to enjoin the disclosure of information they deem private. For example, in Service Employees International Union Local 925 v. Department of Early Learning, 194 Wash.2d 546, 450 P.3d 1181 (2019) ( DEL ), unions brought suit to prevent the Foundation from obtaining the names and addresses of individuals providing subsidized childcare under Washington's Working Connections Child Care program. In that case, the Supreme Court held that RCW 43.17.410(1) prevented the Foundation from accessing personal information of in-home caregivers or vulnerable populations. Id. at 558, 450 P.3d 1181.

¶ 6 That same year, in Washington Public Employees Ass'n v. Washington State Center For Childhood Deafness & Hearing Loss, 194 Wash.2d 484, 490, 450 P.3d 601 (2019) ( WPEA ), the Foundation submitted PRA requests to several state agencies seeking the disclosure of unionized employees’ names, associated birth dates, and agency work email addresses. The unions argued that RCW 42.56.230(3), which exempts from disclosure "[p]ersonal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy," applied to their members’ names when linked to their full dates of birth. 194 Wash.2d at 496, 450 P.3d 601. Our Supreme Court, in a 5 to 4 decision, held that the disclosure of birth dates associated with public employees’ names would not violate the employees’ right to privacy under RCW 42.56.230(3). Id. at 508, 450 P.3d 601.

¶ 7 On February 28, 2020, the Foundation crafted two PRA requests to conform to the Supreme Court's ruling in WPEA and sought the disclosure of names and birthdates of certain public employees. The Foundation's request to DRS sought the full name and full date of birth of any public employee participating in the Teachers’ Retirement System (TRS) or School Employees’ Retirement System (SERS). Its request to OFM sought the full name and full date of birth of every state employee employed in a union-represented bargaining unit.¹ The Foundation sought the data to "contact public employees about their constitutional and statutory rights regarding union membership, dues payment and representation."

¶ 8 Both agencies notified the affected labor unions that, in the absence of an injunction, they would release the records on April 10, 2020 and April 30, 2020, respectively.

¶ 9 On March 1, 2020, the day after the Foundation submitted its requests, Substitute House Bill (SHB) 1071 went into effect. This legislation amended RCW 42.56.590 to require any public agency that owns, maintains or licenses personal data to notify Washington residents when their personal information was accessed in a data security breach. SUBSTITUTE H.B. 1071, 66TH LEG., REG. SESS. (Wash. 2019); RCW 42.56.590(1). RCW 42.56.590(10) now provides in pertinent part:

(a) For purposes of this section, "personal information" means:

(i) An individual's first name or first initial and last name in combination with any one or more of the following data elements:

....

(D) Full date of birth ....

¶ 10 On March 26, 2020, several labor organizations (the Unions)² representing public employees covered by the Foundation's requests filed a complaint and sought to enjoin release of the public employees’ names linked to their dates of birth. The Unions argued that the 2020 amendment to RCW 42.56.590(10), defining "personal information" as including a name linked to a full date of birth, effectively amended RCW 42.56.230(3) and made the release of such information a violation of the employees’ right to privacy.

¶ 11 On April 8, 2020, the trial court issued the preliminary injunction. The trial court found that the disclosure of the employees’ names in conjunction with their full dates of birth would violate their right of privacy, was not in the public interest, and would cause irreparable harm to union members. The preliminary injunction enjoined DRS and OFM from "releasing or disclosing the names in conjunction with full dates of birth."

¶ 12 The trial court granted the Foundation's motion to certify the case for interlocutory appeal. Division Two of this court granted discretionary review under RAP 2.3(b)(4), concluding that the preliminary injunction involved a controlling question of law over which there is substantial ground for a difference of opinion.

¶ 13 On June 11, 2020, while this appeal was pending, the state legislature amended RCW 42.56.250. See SECOND SUBSTITUTE H.B. 1888, 66th Leg., Reg. Sess. (Wash. 2020). As amended, this provision now reads:

The following employment and licensing information is exempt from public inspection and copying under this chapter: ...

(8) Photographs and month and year of birth in the personnel files of employees or volunteers of a public agency, including employees and workers of criminal justice agencies as defined in RCW 10.97.030. The news media, as defined in RCW 5.68.010(5), shall have access to the photographs and full date of birth.

RCW 42.56.250(8) (emphasis added). The Unions contend that this statutory provision renders the Foundation's appeal moot and ask us to dismiss the appeal.

ANALYSIS

A. Mootness

¶ 14 The Unions contend that the trial court's preliminary injunction, premised on the privacy exemption in RCW 42.56.230(3), is now moot because RCW 42.56.250(8) clearly prevents DRS and OFM from disclosing public employee birth dates to the Foundation. The Foundation argues, however, that this appeal is not moot for three reasons. First, it argues that the amendment to RCW 42.56.250(8) does not apply retroactively to its pre-existing PRA requests. Second, it maintains that if the statute applies, it is entitled to invoke the "news media" exception to that statutory exemption. Finally, it contends that if it is entitled to the birth date information under RCW 42.56.250(8), this court should address whether the information is otherwise exempt from disclosure under RCW 42.56.230(3). We reject the Foundation's retroactivity argument but agree that it must be afforded the opportunity to litigate its status as a member of the news media. And we conclude that given the possibility that RCW 42.56.250(8) may permit disclosure to the Foundation, the trial court's interpretation of the privacy exemption of RCW 42.56.230(3) remains at issue. This appeal is thus not moot.

1. Retroactivity of RCW 42.56.250(8)

¶ 15 The Foundation argues first that we cannot apply the new exemption in RCW 42.56.250(8) to its pre-existing PRA requests...