Does 1, 2, 4, 5, Appellants/cross-respondents V. Sam Sueoka, Respondents/cross-appellants

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN DOES 1, 2, 4, 5, DIVISION ONE Appellants/Cross Respondents, No. 83700-1-I JANE DOE 1 and JOHN DOE 3, PUBLISHED OPINION Plaintiffs, v.

SEATTLE POLICE DEPARTMENT and the SEATTLE POLICE DEPARTMENT OFFICE OF POLICE ACCOUNTABILITY,

Respondents,

and

SAM SUEOKA,

Respondent/Cross Appellant,

JEROME DRESCHER, ANNE BLOCK, and CHRISTI LANDES,

Respondents.

DWYER, J. — “There are rights of constitutional stature whose exercise a

State may not condition by the exaction of a price.” Garrity v. State of New

Jersey, 385 U.S. 493, 500, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). Among these

are the rights guaranteed by the First Amendment to our federal constitution.

Garrity, 385 U.S. at 500. Police officers “are not relegated to a watered-down

version of [such] rights.” Garrity, 385 U.S. at 500. No. 83700-1-I/2

In this Public Records Act litigation, the trial court failed to heed this

pronouncement. Accordingly, we reverse the trial court’s order requiring

disclosure of certain unredacted records. We affirm the ancillary orders of the

trial court and remand the matter for further proceedings.

I

Soon after the United States Supreme Court pronounced that police

officers are not condemned to a “watered-down version” of core constitutional

rights, the voters of our state passed by popular initiative the predecessor to

Washington’s Public Records Act1 (PRA). See Progressive Animal Welfare

Soc’y v. Univ. of Wash., 125 Wn.2d 243, 250-52, 884 P.2d 592 (1994) (PAWS)

(noting approval of the public disclosure act in November 1972). Thus, since the

day of the enactment of our state’s public records law, police officers in

Washington have been entitled to the same federal constitutional protections as

are all other Washingtonians. It is by adherence to this principle that we decide

this case.

We are presented today with the question of whether the Seattle Police

Department (SPD) and the City of Seattle (the City) may disclose in investigatory

records the identities of current or former Seattle police officers who were

investigated regarding potential unlawful or unprofessional conduct during the

events of January 6, 2021, in Washington, D.C. John Does 1, 2, 4, and 5 (the

Does) sought judicial declaratory and injunctive relief after being informed that

SPD, their employer, intended to publicly disclose the unredacted investigatory

1 Ch. 42.56 RCW.

2 No. 83700-1-I/3

records in response to several PRA requests. Investigators have determined

that allegations against the Does of unlawful or unprofessional conduct were “not

sustained.” The Does contend that their identities should thus not be disclosed in

the requested records, which include transcripts of interviews in which they were

compelled to disclose and discuss their political beliefs and affiliations.

The trial court denied the Does’ motion for a preliminary injunction,

concluding that the exceptions to permitted disclosure set forth in the PRA are

inapplicable. The Does appealed from the trial court’s order. In addition, Sam

Sueoka, a member of the public who filed a records request to obtain copies of

the investigatory records, cross appealed, asserting that the trial court erred by

permitting the Does to proceed pseudonymously in this litigation.

The United States Supreme Court has recognized a First Amendment

right to privacy that protects against state action compelling disclosure of political

beliefs and associations. Thus, only if the state actor (here, the City)

demonstrates a compelling interest in disclosure, and that interest is sufficiently

related to the disclosure, can the state actor lawfully disclose the Does’ identities

in the investigatory records. Because there is here established no compelling

state interest in disclosing the Does’ identities, the trial court erred by denying the

Does’ motion for a preliminary injunction.

The trial court properly concluded, however, that the Does should be

permitted to use pseudonyms in litigating this action. Because the Does assert a

First Amendment privacy right, it is federal constitutional law—not state law—that

controls their request to litigate pseudonymously. Pursuant to federal First

3 No. 83700-1-I/4

Amendment open courts jurisprudence, plaintiffs may litigate using pseudonyms

in circumstances wherein the injury sought to be prevented by prevailing in the

lawsuit would necessarily be incurred as a result of the compelled disclosure of

the plaintiffs’ identities, required as a condition of commencing the very lawsuit in

which vindication of the constitutional right is sought. Accordingly, the Does may

remain anonymous in this action.

II

The Does are current or former SPD officers2 who attended former

President Donald Trump’s “Stop the Steal” political rally on January 6, 2021 in

Washington, D.C. Upon returning to Washington State, the Does received

complaints from SPD’s Office of Police Accountability (the OPA) alleging that

they might have violated the law or SPD policies during their attendance at the

rally.

The Does thereafter submitted to OPA interviews in which they were

“ordered to answer all questions asked, truthfully and completely,” and informed

that “failure to do so may result in discipline up to and including termination.” In

addition to inquiring regarding the Does’ whereabouts and activities on January

6, the OPA also inquired regarding their political beliefs and associations,

including whether they attended the rally “to articulate [their] political views,”

whether they were “affiliated with any political groups,” and “[their] impressions

of, and reactions to, the content of the Rally.” Because the Does were under

2 John Doe 1 resigned from SPD in December 2021 “as a direct result of the pressure”

from the investigation and “public backlash arising” therefrom, as well as his concern “over retribution” from the incident.

4 No. 83700-1-I/5

standing orders to do so, they answered these questions “truthfully and as

completely as possible.”

Sueoka and other members of the public submitted records requests

pursuant to the PRA, chapter 42.56 RCW, seeking disclosure of the investigatory

records pertaining to police officers who participated in the events of January 6,

2021, in our nation’s capital. In response to the records requests, SPD informed

the Does that it intended to disclose both records regarding its ongoing

investigation and the Does’ personnel files.

On February 23, 2021, the Does filed a complaint for declaratory relief and

preliminary and permanent injunction in the trial court.3 They concurrently filed a

motion for permission to proceed pseudonymously and a motion for a temporary

restraining order (TRO) and order to show cause why the preliminary injunction

should not issue.

On February 24, 2021, the trial court granted the Does’ motion for a TRO,

enjoining production of the requested records until a show cause hearing was

held. On March 9, 2021, the trial court granted the Does’ motion to proceed

pseudonymously, ruling that the order would “remain in effect at least until the

merits of Plaintiffs’ PRA claims are resolved.”

Following the show cause hearing, held on March 10, 2021, the trial court

denied the Does’ motion for a preliminary injunction. The Does sought review of

the trial court’s ruling in this court, and review was granted. Sueoka thereafter

3 The complaint was filed by Jane and John Does, 1 through 6. Jane Doe 1 and John

Doe 3 are not parties in this appeal. While litigation was ongoing in the trial court, the OPA determined that Jane Doe 1 and John Doe 3 had violated both the law and SPD policies on January 6, 2021, and their employment by SPD was terminated.

5 No. 83700-1-I/6

moved to transfer the cause to our Supreme Court. Then, on June 28, 2021, the

OPA concluded its investigation. The OPA determined that allegations that the

presently-litigating Does had violated the law or SPD policies or had engaged in

unprofessional conduct were “not sustained.”

On August 4, 2021, our Supreme Court granted Sueoka’s motion to

transfer the cause to that court. However, following oral argument on November

9, 2021, the court determined that, “in light of changed circumstances,” review of

the preliminary injunction was moot. The court dismissed review of the matter

and remanded the cause to the trial court for further proceedings.

The trial court proceedings at issue herein then commenced. On January

5, 2022, Sueoka filed a “motion to change the case title and bar the use of

pseudonyms.” On January 12, 2022, the Does filed an additional motion for a

preliminary injunction, again requesting that the trial court redact their identities in

any disclosed records.4

Following a January 28, 2022 hearing, the trial court again denied the

Does’ motion for a preliminary injunction, ruling that the Does had not “met their

burden of proof that they have a privacy right that falls within an exemption under

the [PRA].” The court additionally concluded that the record contains “insufficient

evidence” that disclosure will cause the Does to “experience a level of

harassment that will result in a chilling effect on their First Amendment rights.”

4 Jane Doe 1 and John Doe 3 were no longer parties at that point in the litigation.

Accordingly, the motion was filed by the “Represented Doe Plaintiffs,” who are the same individuals as the Does in this appeal.

6 No. 83700-1-I/7

The trial court also denied Sueoka’s motion to preclude the Does from

proceeding in pseudonym.

The Does appeal from the trial court’s order denying their motion for a

preliminary injunction. Sueoka cross appeals, asserting that the trial court erred

by denying his “motion to change the case title and bar the use of pseudonyms.”

Sueoka also requests that we change the case title and bar the use of

pseudonyms in this appeal.

III

The Does assert that the trial court erred by determining that they were

unlikely to succeed on the merits of their claim that their identities are exempt

from disclosure in the requested records and, accordingly, denying their motion

for a preliminary injunction precluding such disclosure. We agree. The First

Amendment, made applicable to the states though the due process clause of the

Fourteenth Amendment, Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L.

Ed. 1138 (1925), confers a right to privacy in one’s political beliefs and

associations that may be impinged only on the basis of a subordinating state

interest that is compelling.

Our Supreme Court’s decisional authority, the profusion of legislatively

enacted exceptions to disclosure, and the policy underlying the PRA indicate that

there is no compelling state interest in disclosing to the public the identities of

public employees against whom unsustained allegations of wrongdoing have

been made. Therefore, we hold that the trial court erred by denying the Does’

7 No. 83700-1-I/8

request for a preliminary injunction precluding disclosure of their names and

other identifying information in the requested records.

A

The party seeking an injunction pursuant to the PRA has the burden of

proof. Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 791, 418 P.3d 102 (2018).

When a party seeks a preliminary injunction or a TRO, “the trial court need not

resolve the merits of the issues.” Seattle Children’s Hosp. v. King County, 16

Wn. App. 2d 365, 373, 483 P.3d 785 (2020). “Instead, the trial court considers

only the likelihood that the moving party ultimately will prevail at a trial on the

merits.” SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servs., 193 Wn. App.

377, 392-93, 377 P.3d 214 (2016).

We stand in the same position as the trial court when, as here, “the record

consists of only affidavits, memoranda of law, and other documentary evidence,

and where the trial court has not seen or heard testimony requiring it to assess

the witnesses’ credibility or competency.” Bainbridge Island Police Guild v. City

of Puyallup, 172 Wn.2d 398, 407, 259 P.3d 190 (2011). “Whether requested

records are exempt from disclosure presents a legal question that is reviewed de

novo.” Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for Childhood Deafness &

Hearing Loss, 194 Wn.2d 484, 493, 450 P.3d 601 (2019).

“The PRA ensures the sovereignty of the people and the accountability of

the governmental agencies that serve them by providing full access to

8 No. 83700-1-I/9

information concerning the conduct of government.” Predisik v. Spokane Sch.

Dist. No. 81, 182 Wn.2d 896, 903, 346 P.3d 737 (2015). Its basic purpose “is to

provide a mechanism by which the public can be assured that its public officials

are honest and impartial in the conduct of their public offices.” Cowles Publ’g Co.

v. State Patrol, 109 Wn.2d 712, 719, 748 P.2d 597 (1988). To that end, the act

requires state and local agencies to “make available for public inspection and

copying all public records,” unless the record falls within a specific exemption in

the PRA or an “other statute which exempts or prohibits disclosure of specific

information or records.” RCW 42.56.070(1).

We have interpreted the “other statute” provision to incorporate

exemptions set forth not only in other legislative enactments, but also those

deriving from the state or federal constitutions. Wash. Fed’n of State Emps.,

Council 28 v. State, 22 Wn. App. 2d 392, 511 P.3d 119 (2022), review granted,

200 Wn.2d 1012, 519 P.3d 585 (2022); see also White v. Clark County, 188 Wn.

App. 622, 354 P.3d 38 (2015). Although our Supreme Court has not directly held

that RCW 42.56.070(1)’s “other statute” provision incorporates constitutional

protections against disclosure, the court has acknowledged that such an

argument “has force.” Yakima County v. Yakima Herald-Republic, 170 Wn.2d

775, 808, 246 P.3d 768 (2011) (addressing the argument that provisions of the

United States Constitution qualify as “other statutes”).

Moreover, the high court has recognized that, even absent legislative

incorporation of constitutional guarantees in the PRA, Washington courts must

nevertheless protect such rights. Seattle Times Co. v. Serko, 170 Wn.2d 581,

9 No. 83700-1-I/10

594-96, 243 P.3d 919 (2010). In the context of fair trial rights, the court

explained that while “[t]here is no specific exemption under the PRA that

mentions the protection of an individual’s constitutional fair trial rights, . . . courts

have an independent obligation to secure such rights.” Seattle Times Co., 170

Wn.2d at 595. Indeed, because “the constitution supersedes contrary statutory

laws, even those enacted by initiative,” “the PRA must give way to constitutional

mandates.” Freedom Found. v. Gregoire, 178 Wn.2d 686, 695, 310 P.3d 1252

(2013).

In addition to setting forth exemptions to the mandate for disclosure of

public records, the PRA includes an injunction provision stating that disclosure

may be enjoined only when “examination would clearly not be in the public

interest and would substantially and irreparably damage any person, or would

substantially and irreparably damage vital governmental functions.” RCW

42.56.540. Based on this statutory provision, our Supreme Court has held that

“finding an exemption applies under the PRA does not ipso facto support issuing

an injunction.” Lyft, 190 Wn.2d at 786. Rather, for the disclosure of records to

be precluded due to a statutory exemption, the court has held that the PRA’s

standard for injunctive relief must also be met. Morgan v. City of Federal Way,

166 Wn.2d 747, 756-57, 213 P.3d 596 (2009); see also Soter v. Cowles Publ’g

Co., 162 Wn.2d 716, 757, 174 P.3d 60 (2007) (plurality opinion) (“[T]o impose the

injunction contemplated by RCW 42.56.540, the trial court must find that a

specific exemption applies and that disclosure would not be in the public interest

10 No. 83700-1-I/11

and would substantially and irreparably damage a person or a vital government

interest.”).

Our analysis of the issues presented relies on the holdings of our nation’s

highest court establishing that the First Amendment to the United States

Constitution confers a privacy right in an individual’s political beliefs and

associations. Accordingly, we must explore the decisional authority establishing

the contours of that right.

The United States Supreme Court has recognized “political freedom of the

individual” to be “a fundamental principle of a democratic society.” Sweezy v.

New Hampshire, 354 U.S. 234, 250, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957).

“Our form of government,” the Court explained, “is built on the premise that every

citizen shall have the right to engage in political expression and association,” a

right “enshrined in the First Amendment.” Sweezy, 354 U.S. at 250. Indeed, “[i]n

the political realm . . . thought and action are presumptively immune from

inquisition by political authority.” Sweezy, 354 U.S. at 266.5 Thus, the federal

constitution protects not only the right of individuals to engage in political

expression and association, but also to maintain their privacy in so doing.

Indeed, the Court has “repeatedly found that compelled disclosure, in

itself, can seriously infringe on privacy of association and belief guaranteed by

5 See also Gibson v. Florida Legis. Investigation Comm., 372 U.S. 539, 570, 83 S. Ct.

889, 9 L. Ed. 2d 929 (1963) (Douglas, J., concurring) (“‘The First Amendment in its respect for the conscience of the individual honors the sanctity of thought and belief. To think as one chooses, to believe what one wishes are important aspects of the constitutional right to be let alone.’” (quoting Pub. Utils. Comm’n of Dist. of Columbia v. Pollak, 343 U.S. 451, 468, 72 S. Ct. 813, 96 L. Ed. 1068 (1952) (Douglas, J., dissenting))).

11 No. 83700-1-I/12

the First Amendment.” Buckley v. Valeo, 424 U.S. 1, 64, 96 S. Ct. 612, 46 L. Ed.

2d 659 (1976) (citing Gibson v. Florida Legis. Investigation Comm., 372 U.S.

539, 83 S. Ct. 889, 9 L. Ed. 2d 929 (1963); Nat’l Ass’n for Advancement of

Colored People v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963);

Bates v. City of Little Rock, 361 U.S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960);

Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960); Nat’l

Ass’n for Advancement of Colored People v. Alabama, 357 U.S. 449, 78 S. Ct.

1163, 2 L. Ed. 2d 1488 (1958) (NAACP)); see also Doe v. Reed, 561 U.S. 186,

232, 130 S. Ct. 2811, 177 L. Ed. 2d 493 (2010) (Thomas, J., dissenting) (“This

Court has long recognized the ‘vital relationship between’ political association

‘and privacy in one’s associations,’ and held that ‘[t]he Constitution protects

against the compelled disclosure of political associations and beliefs.’” (alteration

in original) (citation omitted) (quoting NAACP, 357 U.S. at 462; Brown v. Socialist

Workers ’74 Campaign Comm. (Ohio), 459 U.S. 87, 91, 103 S. Ct. 416, 74 L. Ed.

2d 250 (1982))). Thus, the Court has recognized a “pervasive right of privacy

against government intrusion” that is “implicit in the First Amendment.” Gibson,

372 U.S. at 569-70 (Douglas, J., concurring). This “tradition of anonymity in the

advocacy of political causes . . . is perhaps best exemplified by the secret ballot,

the hard-won right to vote one’s conscience without fear of retaliation.” McIntyre

v. Ohio Elections Comm’n, 514 U.S. 334, 343, 115 S. Ct. 1511, 131 L. Ed. 2d

426 (1995); see also Sweezy, 354 U.S. at 266 (“It cannot require argument that

inquiry would be barred to ascertain whether a citizen had voted for one or the

other of the two major parties either in a state or national election.”).

12 No. 83700-1-I/13

The Supreme Court’s jurisprudence regarding this constitutional right to

privacy evolved in response to legislative investigations seeking to compel the

disclosure of individuals’ political beliefs. In the 1950s, the Court considered the

constitutional limits of legislatures’ authority to inquire into belief and activity

deemed to be subversive to federal or state governments. Uphaus v. Wyman,

360 U.S. 72, 79 S. Ct. 1040, 3 L. Ed. 2d 1090 (1959); Watkins v. United States,

354 U.S. 178, 77 S. Ct. 1173, 1 L. Ed. 2d 1273 (1957); Sweezy, 354 U.S. 234;

Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952). This

“new kind of [legislative] inquiry unknown in prior periods of American history . . .

involved a broad-scale intrusion into the lives and affairs of private citizens,”

Watkins, 354 U.S. at 195, thus requiring the Court to ensure that such inquiry did

not “unjustifiably encroach upon an individual’s right to privacy.” Watkins, 354

U.S. at 198-99. In considering this “collision of the investigatory function with

constitutionally protected rights of speech and assembly,” Uphaus, 360 U.S. at

83 (Brennan, J., dissenting), the Court recognized the state interest in “self-

preservation, ‘the ultimate value of any society.’” Uphaus, 360 U.S. at 80

(quoting Dennis v. United States, 341 U.S. 494, 509, 71 S. Ct. 857, 95 L. Ed.

1137 (1951)). However, the Court rejected any notion that exposure itself was a

valid state interest:

We have no doubt that there is no congressional power to expose for the sake of exposure. The public is, of course, entitled to be informed concerning the workings of its government. That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals.

13 No. 83700-1-I/14

Watkins, 354 U.S. at 200 (footnote omitted); see also Uphaus, 360 U.S. at 82

(Brennan, J., dissenting) (recognizing the “investigatory objective” therein to be

“the impermissible one of exposure for exposure’s sake”).

The Watkins Court recognized the governmental intrusion resulting from

such legislative inquiry, as well as the “disastrous” consequences that may ensue

as a result of compelled disclosure of the individual’s political beliefs.

The mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of governmental interference. And when those forced revelations concern matters that are unorthodox, unpopular, or even hateful to the general public, the reaction in the life of the witness may be disastrous.

354 U.S. at 197; see also Uphaus, 360 U.S. at 84 (Brennan, J., dissenting) (“[I]n

an era of mass communications and mass opinion, and of international tensions

and domestic anxiety, exposure and group identification by the state of those

holding unpopular and dissident views are fraught with such serious

consequences for the individual as inevitably to inhibit seriously the expression of

views which the Constitution intended to make free.”).

However, it is not only those individuals compelled to disclose their beliefs

who may be impacted. To the contrary, the Court recognized an additional “more

subtle and immeasurable effect upon those who tend to adhere to the most

orthodox and uncontroversial views and associations in order to avoid a similar

fate at some future time.” Watkins, 354 U.S. at 197-98. Moreover, that the injury

was not inflicted solely by government actors did not nullify the constitutional

infirmity; rather, that the “impact [was] partly the result of non-governmental

14 No. 83700-1-I/15

activity by private persons [could not] relieve the investigators of their

responsibility for initiating the reaction.” Watkins, 354 U.S. at 198.

The Supreme Court further defined this constitutional privacy interest in

response to legislative action seeking to compel the disclosure of organizational

membership. NAACP, 357 U.S. 449; Bates, 361 U.S. 516; Shelton, 364 U.S.

479; Gibson, 372 U.S. 539. In 1958, the Court considered whether Alabama

could, consistent with our federal constitution, compel the NAACP to disclose its

membership list to the Alabama Attorney General. NAACP, 357 U.S. at 451. “It

is beyond debate,” the Court held, “that freedom to engage in association for the

advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured

by the Due Process Clause of the Fourteenth Amendment, which embraces

freedom of speech.” NAACP, 357 U.S. at 460. Although the state itself had

“taken no direct action” in the challenged contempt judgment, the Court

recognized that “abridgement of [First Amendment] rights, even though

unintended, may inevitably follow from varied forms of governmental action.”

NAACP, 357 U.S. at 461. Indeed, “[t]he governmental action challenged may

appear to be totally unrelated to protected liberties.” NAACP, 357 U.S. at 461.

Nevertheless, the Court held, the State could require disclosure of the

membership lists only if there existed a “‘subordinating interest of the State [that

is] compelling.’” NAACP, 357 U.S. at 463 (quoting Sweezy, 354 U.S. at 265);

see also Bates, 361 U.S. at 524 (“Where there is a significant encroachment

upon personal liberty, the State may prevail only upon showing a subordinating

15 No. 83700-1-I/16

interest which is compelling.”). The Court concluded that it discerned no such

state interest. NAACP, 357 U.S. at 464.

The Court again considered whether the First Amendment, incorporated

through the due process clause, precluded the compelled disclosure of NAACP

membership lists in Bates, 361 U.S. 516. There, the organization asserted the

rights of its “‘members and contributors to participate in the activities of the

NAACP, anonymously, a right which has been recognized as the basic right of

every American citizen since the founding of this country.’” Bates, 361 U.S. at

521. Again, the Court recognized that it was not simply a “heavy-handed frontal

attack” against which First Amendment freedoms are protected, but “also from

being stifled by more subtle governmental interference.” Bates, 361 U.S. at 523.

In concurrence, Justices Black and Douglas recognized that mere exposure by

the government can impinge these constitutional protections. Bates, 361 U.S. at

528 (Black & Douglas, JJ., concurring). “First Amendment rights,” the Justices

recognized, “are beyond abridgement either by legislation that directly restrains

their exercise or by suppression or impairment through harassment, humiliation,

or exposure by government.” Bates, 361 U.S. at 528 (Black & Douglas, JJ.,

concurring) (emphasis added). As in NAACP, the Bates Court discerned no

sufficient state interest to compel the disclosure of the membership lists. 361

U.S. at 525.

That same year, the Court addressed the constitutionality of an Arkansas

statute requiring public school teachers to disclose, as a condition of

employment, all organizations with which they had been associated in the

16 No. 83700-1-I/17

previous five years. Shelton, 364 U.S. 479. Recognizing the State’s

undoubtedly legitimate interest in investigating the fitness and competency of its

teachers, the Court nevertheless observed that the statute’s “scope of inquiry”

was “completely unlimited.” Shelton, 364 U.S. at 485, 488. Significantly, the

statute would have required “a teacher to reveal the church to which he belongs,

or to which he has given financial support. It [would have required] him to

disclose his political party, and every political organization to which he may have

contributed over a five-year period.” Shelton, 364 U.S. at 488. This

“comprehensive interference with associational freedom,” the Court held, “goes

far beyond what might be justified in the exercise of the State’s legitimate inquiry

into the fitness and competency of its teachers.” Shelton, 364 U.S. at 490.

As in NAACP, the Supreme Court in Shelton again recognized that

exposure by the State could impinge constitutional privacy rights. Because the

Arkansas statute nowhere required confidentiality of the information involuntarily

disclosed to the government, the Court considered that the teachers’ religious,

political, and other associational ties could additionally be disclosed to the public.

Shelton, 364 U.S. at 486-87. The Court was clear that such an intrusion into the

teachers’ privacy would further impinge their constitutional rights. Such “[p]ublic

exposure, bringing with it the possibility of public pressures upon school boards

to discharge teachers who belong to unpopular or minority organizations, would

simply operate to widen and aggravate the impairment of constitutional liberty.”

Shelton, 364 U.S. at 486-87.

17 No. 83700-1-I/18

Four Justices dissented in Shelton, disagreeing with the majority’s holding

that, under the circumstances presented, the extent of constitutional infringement

resulting from compelled disclosure was sufficient to override the countervailing

legitimate state interest.6 Nevertheless, even the dissenting opinions in Shelton

recognized both the existence of a constitutional privacy interest and the

potential for public exposure of associational ties to impinge upon those rights.

For instance, Justice Frankfurter, distinguishing NAACP and Bates due to the

absence of a legitimate state interest presented in those cases, recognized “that

an interest in privacy, in non-disclosure, may under appropriate circumstances

claim constitutional protection.” Shelton, 364 U.S. at 490 (Frankfurter, J.,

dissenting). Similarly, Justice Harlan suggested that public disclosure of the

teachers’ associational ties, beyond simply the compelled disclosure to their

school boards, might impinge their liberty rights: “I need hardly say that if it turns

out that this statute is abused, either by an unwarranted publicizing of the

required associational disclosures or otherwise, we would have a different kind of

case than those presently before us.” Shelton, 364 U.S. at 499 (Harlan, J.,

dissenting).

Three years later, the Court was “called upon once again to resolve a

conflict between individual rights of free speech and association and

governmental interest in conducting legislative investigations.” Gibson, 372 U.S.

6 See Shelton, 364 U.S. at 496 (Frankfurter, J., dissenting) (concluding that “the

disclosure of teachers’ associations to their school boards” is not “without more, such a restriction upon their liberty . . . as to overbalance the State’s interest in asking the question”); Shelton, 364 U.S. at 497 (Harlan, J., dissenting) (concluding that the statute’s disclosure requirement “cannot be said to transgress the constitutional limits of a State’s conceded authority to determine the qualifications of those serving it as teachers”).

18 No. 83700-1-I/19

at 543. There, a Florida legislative committee sought to subpoena NAACP

membership lists, presumably to investigate suspected communist involvement.

Gibson, 372 U.S. at 540-41. The Supreme Court again affirmed that such an

investigation, “which intrudes into the area of constitutionally protected rights of

speech, press, association and petition,” is lawful only when the State can

“convincingly show a substantial relation between the information sought and a

subject of overriding and compelling state interest.” Gibson, 372 U.S. at 546.

The Court held that “all legitimate organizations are the beneficiaries of these

protections,” but noted that the protections “are all the more essential . . . where

the challenged privacy is that of persons espousing beliefs already unpopular

with their neighbors.” Gibson, 372 U.S. at 556-57. In such circumstances, “the

deterrent and ‘chilling’ effect on the free exercise of constitutionally enshrined

rights of free speech, expression, and association is consequently the more

immediate and substantial.” Gibson, 372 U.S. at 557.

In the decades that have followed, the Supreme Court has continued to

hold that First Amendment rights may be impinged when the government

compels disclosure of political beliefs and associations. In 1982, the Court again

affirmed that “[t]he Constitution protects against the compelled disclosure of

political associations and beliefs.” Brown, 459 U.S. at 91. “Such disclosures,”

the Court recognized, “‘can seriously infringe on privacy of association and belief

guaranteed by the First Amendment.’” Brown, 459 U.S. at 91 (quoting Buckley,

424 U.S. at 64). Again, the Court held that only by demonstrating a compelling

interest can the State lawfully impinge such rights:

19 No. 83700-1-I/20

The right to privacy in one’s political associations and beliefs will yield only to a “‘subordinating interest of the State [that is] compelling,’” NAACP[, 357 U.S. at 463] (quoting Sweezy[, 354 U.S. at 265]) (opinion concurring in result), and then only if there is a “substantial relation between the information sought and [an] overriding and compelling state interest.” Gibson[, 372 U.S. at 546].

Brown, 459 U.S. at 91-92 (some alterations in original).

Over a decade later, in declaring unconstitutional an Ohio statute

prohibiting the distribution of anonymous campaign literature, the Supreme Court

once again “embraced [the] respected tradition of anonymity in the advocacy of

political causes.” McIntyre, 514 U.S. at 343 (citing Talley v. California, 362 U.S.

60, 80 S. Ct. 536, 4 L. Ed. 2d 559 (1960)); see also Watchtower Bible & Tract

Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 122 S. Ct. 2080, 153 L.

Ed. 2d 205 (2002) (recognizing a right to anonymity in declaring unconstitutional

an ordinance requiring individuals to obtain and display a permit to engage in

door-to-door advocacy). In McIntyre, the Court recognized the constitutional

significance of “core political speech,” describing the speech involved therein—

the “handing out [of] leaflets in the advocacy of a politically controversial

viewpoint”—as “the essence of First Amendment expression.” 514 U.S. at 347.

Acknowledging that the reasons for anonymity could be many,7,8 the Court held

that the freedom to remain anonymous, whether in “the literary realm” or “in the

field of political rhetoric,” “is an aspect of the freedom of speech protected by the

7 “The decision in favor of anonymity,” the Court noted, “may be motivated by fear of

economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.” McIntyre, 514 U.S. at 341-42. 8 “Even the Federalist Papers, written in favor of the adoption of our Constitution, were

published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.” Talley, 362 U.S. at 65.

20 No. 83700-1-I/21

First Amendment.” McIntyre, 514 U.S. at 342-43. For Justice Stevens, writing in

McIntyre, the value of anonymity in political speech could not be overstated:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.

514 U.S. at 357.

For nearly a century, the rights afforded by the First Amendment have

been protected against intrusion by the States as an “inseparable aspect of the

‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment,

which embraces freedom of speech.” NAACP, 357 U.S. at 460; see Gitlow, 268

U.S. 652. During this time, the Supreme Court has repeatedly recognized that

encompassed within this liberty interest is the right of individuals to privacy in

their political beliefs and associations, wherein “thought and action are

presumptively immune from inquisition by political authority.” Sweezy, 354 U.S.

at 266 (Frankfurter, J., concurring). This privacy interest “yield[s] only to a

‘subordinating interest of the State [that is] compelling,’ and then only if there is a

‘substantial relation between the information sought and [an] overriding and

compelling state interest.’” Brown, 459 U.S. at 91-92 (second and third

alterations in original) (citation and internal quotation marks omitted) (quoting

Sweezy, 354 U.S. at 265; Gibson, 372 U.S. at 546).

21 No. 83700-1-I/22

It is with cognizance of these principles that we consider whether SPD and

the City may disclose the Does’ identities in the investigatory records at issue.

B

The Does assert that the disclosure of their identities in the requested

records will violate their First Amendment right to political anonymity.9 They

contend that the trial court erred by determining that no constitutional privacy

interest is implicated in this situation. We agree.

Both the Does’ attendance at the January 6 rally and their compelled

statements to investigators implicate the First Amendment. Exposure by the

government of this information, through disclosure of the unredacted requested

records, would impinge the Does’ constitutional right to anonymity in their political

beliefs and associations.

Pursuant to United States Supreme Court decisional authority, the State

must demonstrate that disclosure of the unredacted requested records would

further a compelling state interest and that such disclosure is narrowly tailored to

achieve that state interest. Because no compelling state interest exists to justify

disclosure of the unredacted records, the Does are entitled to an injunction

prohibiting exposure by the government of their identities.

9 The parties’ initial appellate briefing primarily concerns whether the Does are entitled to

a preliminary injunction pursuant to statutory exemptions set forth in the PRA. However, the Does additionally contended that disclosure would violate their First Amendment rights. Following oral argument, the parties submitted supplemental briefing addressing this issue more thoroughly. Because the answer to the Does’ request for a remedy is found in First Amendment jurisprudence, we need not address the parties’ arguments regarding PRA statutory exemptions to disclosure.

22 No. 83700-1-I/23

The Does assert that disclosure of their identities in the requested records,

both with regard to their attendance at the January 6 rally and their statements

made to investigators concerning their political views and affiliations, will violate

their First Amendment right to privacy. They aver that the trial court erred in two

respects. First, the Does contend that the trial court erroneously concluded that,

because the January 6 rally was a public event, the Does had no right to privacy

in attending that event. Second, they argue that the trial court erred by

concluding that they had not demonstrated a sufficient probability of a “chilling

effect” on their constitutional rights to be entitled to the relief sought.

Sueoka contends, on the other hand, that the Does’ attendance at the

January 6 rally is not protected by a constitutional privacy right. He further

contends that, even if disclosure of the Does’ identities in the requested records

implicates a First Amendment right, the Does relinquished that right by

cooperating with the OPA’s investigation. Finally, Sueoka asserts that the trial

court properly determined that the Does have not shown a sufficient probability of

harm to establish a constitutional right to privacy.

The Does’ contentions, consistent as they are with United States Supreme

Court decisional authority, are the more persuasive. We conclude that the Does

have a First Amendment privacy right in their identities in the requested records.

(a)

The First Amendment to the United States Constitution, as incorporated

through the due process clause of the Fourteenth Amendment, “protects against

23 No. 83700-1-I/24

the compelled disclosure of political associations and beliefs.” Brown, 459 U.S.

at 91; see also Buckley, 424 U.S. at 64 (noting that the Court had “repeatedly

found that compelled disclosure, in itself, can seriously infringe on privacy of

association and belief guaranteed by the First Amendment”). Even when the

State takes “no direct action” to abridge an individual’s First Amendment rights,

those rights may be impinged by “varied forms of governmental action” that “may

appear to be totally unrelated to protected liberties.” NAACP, 357 U.S. at 461.

In other words, it is not solely a “heavy-handed frontal attack” by government that

may abridge an individual’s First Amendment rights; such constitutional

transgression may also arise from “more subtle governmental interference.”

Bates, 361 U.S. at 523. Indeed, simple “exposure by government” may be

sufficient to impinge such rights. Bates, 361 U.S. at 528.

Here, the trial court concluded, and Sueoka presently asserts, that the

Does have no right to privacy in having attended a public political rally. The trial

court reasoned:

Whether a person attended a public rally is not the type of intimate detail that courts in Washington have said should remain private. Washington courts have not previously found an inherent right to privacy in attendance at a public political rally. Attending a public rally is not an act that is inherently cloaked in privacy.

In so ruling, the court was clearly referring to Washington law concerning

whether an individual has a statutory right to privacy pursuant to the PRA.10 We

10 Because the PRA does not define “right to privacy,” our Supreme Court adopted the

common law tort definition of the term, which provides, in part, that the privacy right is implicated when the “‘intimate details of [a person’s] life are spread before the public gaze in a manner highly offensive to the ordinary reasonable [person].’” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 136, 580 P.2d 246 (1978) (quoting RESTATEMENT (SECOND) OF TORTS § 652D, at 386 (AM. LAW INST. 1977)). The trial court referenced this language in ruling that the Does’ attendance at the January 6 rally does not implicate a privacy right.

24 No. 83700-1-I/25

do not evaluate, however, whether disclosure of the Does’ identities is precluded

by a statutory right to privacy.

Rather, we conclude that, pursuant to United States Supreme Court

decisional authority, the disclosure by the government of the Does’ identities in

the requested records would violate their federal constitutional right to anonymity

in political belief and association. See, e.g., Watchtower Bible, 536 U.S. 150;

McIntyre, 514 U.S. 334; Brown, 459 U.S. 87; Buckley, 424 U.S. 1; Gibson, 372

U.S. 539; Shelton, 364 U.S. 479; Talley, 362 U.S. 60; Bates, 361 U.S. 516;

Uphaus, 360 U.S. 72; NAACP, 357 U.S. 449; Watkins, 354 U.S. 178; Sweezy,

354 U.S. 234; Wieman, 344 U.S. 183. Such governmental action would expose

to the public not only records evidencing the Does’ attendance at the January 6

rally, but also the transcripts of interviews in which the Does were compelled to

“articulate [their] political views,” discuss whether they were “affiliated with any

political groups,” and describe “[their] impressions of, and reactions to, the

content of the Rally.” The requested records thus implicate the Does’ personal

political views and their affiliations, if any, with political organizations.11 “It cannot

Because, at common law, sovereign immunity precluded actions against the government, it comes as little surprise that in this case—wherein the actions of government are directly at issue—the answer is found not in the common law but in the First and Fourteenth Amendments— which are each solely directed at governmental action. 11 The trial court did not consider whether the Does’ statements regarding their political

beliefs and associations, compelled to be disclosed during the OPA investigation, implicated either a statutory or constitutional right to privacy. Instead, the court found that there was “no evidence . . . indicating whether the requested records sought contain explicit information about the Does’ political beliefs or associations.” The record does not support this finding. The Does’ declarations state that each was “ordered to answer all questions asked, truthfully and completely, and that failure to do so may result in discipline up to and including termination.” These questions included “why [they] attended” the rally, whether they attended “to articulate [their] political views,” whether they were “showing support for a political group” or were “affiliated with any political groups,” and what were their “impressions of, and reactions to, the content” of the rally. In their declarations, each of the Does stated: “Because I believed I was under a standing order to answer these personal

25 No. 83700-1-I/26

require argument,” the United States Supreme Court has stated, “that inquiry

would be barred to ascertain whether a citizen had voted for one or the other of

the two major parties either in a state or national election.” Sweezy, 354 U.S. at

266. If such direct governmental action would impinge the Does’ constitutional

privacy interests, then so, too, does exposure by the government of that same

information pursuant to a records request. See Bates, 361 U.S. at 523; NAACP,

357 U.S. at 461.

Sueoka nevertheless contends that our Supreme Court’s decision in

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

(1989), “puts to rest any claim” that the Does’ attendance at the January 6 rally is

protected by a constitutional privacy right.12 In that case, the court considered

whether a statutory exemption precluded disclosure of an investigatory report

that identified police officers who had attended a party on Spokane Police Guild

Club premises. Spokane Police Guild, 112 Wn.2d at 31. The party, “variously

referred to as a bachelor party, stag show and strip show,” had been determined

to violate regulations of the liquor board. Spokane Police Guild, 112 Wn.2d at

31. Our Supreme Court held that disclosure of the report would not violate the

statutory right to privacy conferred by the statutory predecessor of the PRA.

Spokane Police Guild, 112 Wn.2d at 37-38. Recognizing that this privacy right

pertains “only to the intimate details of one’s personal and private life,” the court

reasoned that there was “no personal intimacy involved in one’s presence or

questions, I did so truthfully and as completely as possible.” These declarations are themselves evidence that the requested records contain statements regarding the Does’ political beliefs and affiliations. 12 Br. of Resp’t/Cross Appellant at 31.

26 No. 83700-1-I/27

conduct at such a well attended and staged event which would be either lost or

diminished by being made public.” Spokane Police Guild, 112 Wn.2d at 38.

According to Sueoka, this holding compels the conclusion herein that the

Does’ attendance at the January 6 rally—occurring, as it did, in a public

location13—does not implicate a right to privacy. However, in so asserting,

Sueoka confuses the statutory privacy right bestowed by the PRA with the

constitutional privacy right deriving from the First Amendment. In Spokane

Police Guild, the disclosure of the officers’ political beliefs and associations was

not at issue; accordingly, the court considered only whether a statutory

exemption prohibited disclosure of the investigative report. 112 Wn.2d at 37-38.

Moreover, in focusing solely on the Does’ attendance at a public event, Sueoka

disregards that disclosure of the requested records would additionally expose the

Does’ statements regarding their political beliefs and associations, which the

Does were compelled to disclose during the OPA investigation. In short, Sueoka

asserts that Washington Supreme Court decisional authority concerning a

statutory right to privacy stemming from the common law of torts precludes a

determination that a federal constitutional right prohibits disclosure by a

government. This contention is wholly unavailing.

Sueoka additionally contends that the United States Supreme Court’s

decisional authority regarding the First Amendment right to political anonymity is

13 The Capitol Police issued six permits authorizing gatherings on January 6, 2021 on

property under its control. Jason Leopold, The Capitol Police Granted Permits For Jan. 6 Protests Despite Signs That Organizers Weren’t Who They Said They Were, BUZZFEED NEWS (Sept. 17, 2021), https://www.buzzfeednews.com/article/jasonleopold/the-capitol-police-said-jan- 6-unrest-on-capitol-grounds [https://perma.cc/LWM5-P3MN].

27 No. 83700-1-I/28

inapposite because, he argues, the Does “cannot be compared to members of

small and powerless political or religious groups,” and are not “seeking

anonymity from the government itself.”14 Again, we disagree.

Contrary to Sueoka’s assertion, the United States Supreme Court has not

limited the applicability of the First Amendment’s privacy right to members of

“small and powerless political or religious groups.” To the contrary, the Court has

recognized that “the deterrent and ‘chilling’ effect on the free exercise of

constitutionally enshrined rights of free speech, expression, and association” is

“the more immediate and substantial” when “the challenged privacy is that of

persons espousing beliefs already unpopular with their neighbors.” Gibson, 372

U.S. at 556-57. Nevertheless, the Court was clear that, “of course, all legitimate

organizations are the beneficiaries of these protections.” Gibson, 372 U.S. at

556.15 Moreover, the question is not whether an individual is a member of a

“small and powerless” group, as Sueoka asserts, but whether the individual

“espous[es] beliefs . . . unpopular with their neighbors,” Gibson, 372 U.S. at 557,

such that exposure of those beliefs could discourage the exercise of

constitutional rights.

Thus, it is the opprobrium that the community has for the individual’s

beliefs that is material to any “chilling effect” on constitutional rights.16 We are

14 Br. of Resp’t/Cross Appellant at 32. 15 In Gibson, a Florida legislative committee sought to subpoena NAACP membership

lists, 372 U.S. at 540-41, hence the Court’s reference to “organizations.” However, it was the constitutional rights of the individuals whose identities would be disclosed in the membership lists that was at issue. In any event, we see no reason to distinguish between “organizations” and individuals on this point. 16 As discussed infra, case law does not support Sueoka’s assertion that the Does were

required to demonstrate a more substantial “chilling effect” to establish a First Amendment privacy right in the requested records.

28 No. 83700-1-I/29

cognizant that, in the Seattle community, the Does would likely face opprobrium

were their identities disclosed.17 This is likely notwithstanding the fact that the

OPA investigation determined that any allegations of unlawful or unprofessional

conduct against the Does were unsustained. We reach this conclusion with an

awareness of the events of recent years, including the Department of Justice

finding of the systemic use of excessive force by SPD officers (necessitating the

federal district court’s imposition of a consent decree), the horrific killing of

George Floyd and other unarmed Black individuals throughout our country, and

the eruption of protests, including in Seattle, in response to those incidents.18

Whether correctly or not, as Sueoka’s briefing demonstrates, the Seattle

community is likely to presume that the Does’ attendance at the January 6 rally

indicates that they are white supremacists who sought to undermine our nation’s

democracy. But whatever various individuals might infer, it remains true that all

17 In 2016, Donald Trump received 8 percent of the vote in Seattle precincts. Here’s How

Seattle Voters’ Support for Trump Compared to Other Cities’, SEATTLE TIMES (Nov. 17, 2016), https://www.seattletimes.com/seattle-news/politics/heres-how-seattle-voters-support-for-trump- stacks-up-to-other-u-s-cities/ [https://perma.cc/4PNL-G68W]. In 2020, he again received 8 percent of the vote in Seattle. Danny Westneat, Don’t Look Now, but Trump Did Better in Blue King County Than He Did the Last Time, SEATTLE TIMES (Nov. 11, 2020), https://www.seattletimes.com/seattle-news/politics/dont-look-now-but-trump-did-better-in-blue- king-county-than-he-did-the-last-time/ [https://perma.cc/N8F8-TFHL]. 18 Whether records are subject to disclosure must be determined without regard to the

motivation of the records requestor. RCW 42.56.080 (“Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request except to establish whether inspection and copying would violate RCW 42.56.070(8) or 42.56.240(14), or other statute which exempts or prohibits disclosure of specific information or records to certain persons.”); see also Livingston v. Cedeno, 164 Wn.2d 46, 53, 186 P.3d 1055 (2008) (holding that the Department of Corrections, in “its capacity as an agency subject to” the PRA, “must respond to all public disclosure requests without regard to the status or motivation of the requester”). However, when the impingement of constitutional protections for speech and association are at issue, it is clear that courts may consider the pertinent political and cultural atmosphere in determining whether exposure could discourage the exercise of First Amendment rights.

29 No. 83700-1-I/30

citizens, including public employees, may benefit from the constitutional right to

privacy in their political beliefs espoused by our nation’s highest court.19

As the Court has held, the mere compelling of an individual to disclose

“beliefs, expressions or associations is a measure of governmental interference.”

Watkins, 354 U.S. at 197. When these “forced revelations concern matters that

are unorthodox, unpopular, or even hateful to the general public, the reaction in

the life of [that individual] may be disastrous.” Watkins, 354 U.S. at 197; see also

Uphaus, 360 U.S. at 84 (Brennan, J., dissenting) (“[E]xposure and group

identification by the state of those holding unpopular and dissident views are

fraught with such serious consequences for the individual as to inevitably inhibit

seriously the expression of views which the Constitution intended to make free.”).

While we have no sympathy for those who sought to undermine our democracy

on January 6, 2021, the fact here is that the allegations that the Does were

engaged in unlawful or unprofessional conduct were not sustained. They did not

forfeit their First Amendment rights.

As our nation’s highest court long-ago made clear,

[a] final observation is in order. Because our disposition is rested on the First Amendment as absorbed in the Fourteenth . . . our decisions in the First Amendment area make[] plain that its protections would apply as fully to those who would arouse our society against the objectives of the petitioner. See, e.g., Near v. Minnesota, 283 U.S. 697[, 51 S. Ct. 625, 75 L. Ed. 1357 (1931)]; Terminiello v. Chicago, 337 U.S. 1[, 69 S. Ct. 894, 93 L. Ed. 1131

19 Concurring in Wieman, 344 U.S. at 193, Justice Black recognized the importance of

ensuring that First Amendment protections are secured for all individuals: Our own free society should never forget that laws which stigmatize and penalize thought and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended. We must have freedom of speech for all or we will in the long run have it for none but the cringing and the craven. And I cannot too often repeat my belief that the right to speak on matters of public concern must be wholly free or eventually be wholly lost.

30 No. 83700-1-I/31

(1949)]; Kunz v. New York, 340 U.S. 290[, 71 S. Ct. 312, 95 L. Ed. 280 (1951)]. For the Constitution protects expression and association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered.

Button, 371 U.S. at 444-45.

Returning to Sueoka’s contentions, we are similarly unpersuaded by his

assertion that the Does cannot establish a First Amendment right to privacy

because, according to him, they are not “seeking anonymity from the government

itself.”20 In fact, as Sueoka notes, the Does have already been compelled to

disclose their political beliefs and associations to SPD and the City. However,

the government need not take “direct action” in order to unlawfully impinge an

individual’s constitutional privacy right. NAACP, 357 U.S. at 461. Rather,

“abridgement of such rights, even though unintended, may inevitably follow from

varied forms of governmental action,” including action that “may appear to be

wholly unrelated to protected liberties.” NAACP, 357 U.S. at 461.

Indeed, the United States Supreme Court has held that “First Amendment

rights are beyond abridgement either by legislation that directly restrains their

exercise or by suppression or impairment through harassment, humiliation, or

exposure by government.” Bates, 361 U.S. at 528 (Black & Douglas, JJ.,

concurring) (emphasis added); see also Shelton, 364 U.S. at 486-87 (“Public

exposure, bringing with it the possibility of public pressures upon school boards

to discharge teachers who belong to unpopular or minority organizations, would

simply operate to widen and aggravate the impairment of constitutional liberty.”).

20 Br. of Resp’t/Cross Appellant at 32.

31 No. 83700-1-I/32

Here, the state action challenged is the government’s exposure, pursuant

to state statute, of the Does’ identities in the requested records, which implicate

their political beliefs and associations. Sueoka’s insinuation that the City’s

disclosure of the Does’ identities would not constitute governmental action is

simply wrong.

(b)

Sueoka additionally asserts that, even if disclosure of the Does’ identities

would impinge their constitutional rights, the Does willingly relinquished their right

to privacy. This is so, Sueoka contends, because the Does “had a right to keep

their political opinions private,” knew that their employer was subject to the PRA,

but nevertheless attended the January 6 rally and “then informed their employer

of their activities.”21 We disagree. Contrary to Sueoka’s assertion, the Does did

not relinquish their constitutional rights.

The facts are these. The Does submitted to interviews during an

investigation in which they were alleged to have violated the law or SPD policies

during their attendance at the January 6 rally. They were “ordered to answer all

questions asked, truthfully and completely.” They were informed that “failure to

do so may result in discipline up to and including termination.” They were then

questioned regarding their reasons for attending the January 6 rally, their political

beliefs and affiliations with political groups, if any, and their impressions of the

content of the rally. The Does answered these questions “truthfully and as

completely as possible” because they were under standing orders to do so.

21 Br. of Resp’t/Cross Appellant at 27-28.

32 No. 83700-1-I/33

In other words, the Does did not “ha[ve] a right to keep their political

opinions private.” Nor, contrary to Sueoka’s assertion, did the Does voluntarily

“inform[] their employer of their activities.” Rather, the Does were placed in the

untenable position of either refusing to answer investigators’ questions, thus

risking their livelihoods, or cooperating with the investigation, thereby

compromising their constitutional rights.22

Nearly a century ago, the United States Supreme Court rejected the

notion that an indirect assault on constitutional protections due to a purported

“choice” is less insidious than is direct impingement of such rights. Frost v. RR

Comm’n of State of Cal., 271 U.S. 583, 593, 46 S. Ct. 605, 70 L. Ed. 2d 1101

(1926). There, a California statute precluded private carriers from the privilege of

using public highways for “transacting private business thereon” unless they

submitted to regulation lawfully imposed on common carriers. Frost, 271 U.S. at

591. The Supreme Court struck down the statute, which, it concluded, was

intended to protect the business of common carriers by controlling competition.

Frost, 271 U.S. at 591, 593. In so doing, the Court held that a state may not

require the relinquishment of a constitutional right as the basis to confer a

privilege. Frost, 271 U.S. at 593. Were it otherwise, “constitutional guaranties,

so carefully safeguarded against direct assault, [would be] open to destruction by

the indirect but no less effective process of requiring a surrender, which, though

in form voluntary, in fact lacks none of the elements of compulsion.” Frost, 271

22 Adopting Sueoka’s assertion that the Does’ cooperation in the investigation was

voluntary would also lead to the problematic conclusion that police officers need not cooperate in such investigations. Little public good would flow from such a holding.

33 No. 83700-1-I/34

U.S. at 593. To be given only “a choice between the rock and the whirlpool,”

wherein the option is to forego one’s livelihood or “submit to a requirement which

may constitute an intolerable burden,” is in reality, the Court announced, no

choice at all. Frost, 271 U.S. at 593.

Four decades later, the Supreme Court explicitly rejected the proposition

advanced by Sueoka herein—that statements obtained from police officers as a

result of those officers cooperating (in compliance with a lawful request to do so)

in investigations conducted by their employer or at their employer’s direction are

deemed voluntary. Garrity, 385 U.S. 493. In Garrity, police officers were ordered

to cooperate in an investigation by the New Jersey Attorney General regarding

“alleged irregularities in handling cases in the municipal courts” of certain New

Jersey boroughs. 385 U.S. at 494. Prior to questioning, each officer was warned

“(1) that anything he said might be used against him in any state criminal

proceeding; (2) that he had the privilege to refuse to answer if the disclosure

would tend to incriminate him; but (3) that if he refused to answer he would be

subject to removal from office.” Garrity, 385 U.S. at 494. After cooperating in the

investigation, the officers were convicted of conspiracy to obstruct the

administration of the traffic laws, and “their convictions were sustained over their

protests that their statements were coerced, by reason of the fact that, if they

refused to answer, they could lose their positions with the police department.”

Garrity, 385 U.S. at 495 (footnote omitted).

34 No. 83700-1-I/35

The Supreme Court held that, where the officers were given the choice

between self-incrimination and losing their livelihoods, their statements were not

voluntary:

The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, 384 U.S. 436, 464-65[, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)], is “likely to exert such pressure upon an individual as to disable him from making a free and rational choice.” We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.

Garrity, 385 U.S. at 497-98 (footnote omitted). Police officers, the Court

concluded, “are not relegated to a watered-down version of constitutional rights.”

Garrity, 385 U.S. at 500. Moreover, the Court therein confirmed that the rights

secured by the First Amendment are among those “rights of constitutional stature

whose exercise a State may not condition by the exaction of a price.” Garrity,

385 U.S. at 500.

As in Garrity, the Does here were informed by SPD, their employer, that

their continued employment could be contingent on their cooperation with the

investigation. The answers elicited from the Does during interviews directly

implicate speech protected by the First Amendment. The Does, as with the

police officers in Garrity, were afforded a choice “‘between the rock and the

whirlpool,’” 385 U.S. at 496 (quoting Stevens v. Marks, 383 U.S. 234, 243, 86 S.

Ct. 788, 15 L. Ed. 2d 724 (1966)), whereby only by relinquishing their

constitutional privacy interests could the Does ensure their continued

35 No. 83700-1-I/36

employment. “[D]uress is inherent” when statements are thusly obtained.

Garrity, 385 U.S. at 498.

As the precedent of our nation’s highest court makes clear, the Does’

statements to investigators were not voluntary. We reject Sueoka’s assertion

that the Does relinquished their constitutional rights by cooperating with the

OPA’s investigation.

(c)

Sueoka next contends that the Does have not set forth sufficient evidence

that harm would result from disclosure of their identities in the requested records,

such that they should be entitled to an injunction precluding such disclosure. He

asserts that the Does must demonstrate that disclosure would create a “chilling

effect” on their constitutional rights and that they have not done so. Again, we

disagree. Adhering to precedent from our Supreme Court, and cognizant that

federal courts have determined that a “chilling effect” may, at times, be assumed,

we hold that the evidence submitted by the Does is sufficient to meet the

necessary showing of potential harm.

In Doe v. Reed, the United States Supreme Court considered whether,

pursuant to Washington’s PRA, the disclosure of referendum petitions, and

thereby of the identities of the petition signers, would violate the First

Amendment. 561 U.S. 186. The Court therein concluded that disclosure would

not violate the First Amendment with respect to referendum petitions in general.

Reed, 561 U.S. at 202. However, the Court articulated the standard it had

applied “in related contexts,” that “those resisting disclosure can prevail under the

36 No. 83700-1-I/37

First Amendment if they can show ‘a reasonable probability that the compelled

disclosure [of personal information] will subject them to threats, harassment, or

reprisals from either Government officials or private parties.’” Reed, 561 U.S. at

200 (alteration in original) (quoting Buckley, 424 U.S. at 74).

Our Supreme Court applied this standard in evaluating the constitutionality

of a discovery order compelling the disclosure of meeting minutes of the

Freedom Socialist Party. See Snedigar v. Hoddersen, 114 Wn.2d 153, 156, 786

P.2d 781 (1990). In that case, the court reversed a decision of this court, in

which we had held that the party resisting the discovery order was required to

make “an initial showing of actual infringement on First Amendment rights.”

Snedigar, 114 Wn.2d at 158. This was wrong, our Supreme Court explained,

because “[t]he party asserting the First Amendment associational privilege is only

required to show some probability that the requested disclosure will harm its First

Amendment rights.” Snedigar, 114 Wn.2d at 158. And, indeed, in that case, the

Party’s national secretary submitted affidavits stating that (1) “Party members

and supporters had been subjected to acts of reprisal and harassment in the

past,” and (2) that “the expectation of confidentiality in internal discussions [was]

essential to the Party’s survival.” Snedigar, 114 Wn.2d at 163. These affidavits,

our Supreme Court held, were sufficient to demonstrate that disclosure would

“chill” the Party’s constitutional rights. Snedigar, 114 Wn.2d at 164.

In evaluating whether sufficient probability of harm was shown, our

Supreme Court in Snedigar recognized that some courts have explicitly held that

“a concrete showing of ‘chill’ is unnecessary” to determine that disclosure would

37 No. 83700-1-I/38

impinge First Amendment rights. 114 Wn.2d at 162 (citing Black Panther Party v.

Smith, 661 F.2d 1243, 1267-68, (D.C. Cir. 1981); Britt v. Superior Court, 20 Cal.

3d 844, 855, 574 P.2d 766, 143 Cal. Rptr. 695 (1978)). Indeed, the court noted,

some courts “have overlooked the absence of a factual record of past

harassment and . . . assumed that disclosure of information” would chill such

rights. Snedigar, 114 Wn.2d at 162 (citing Shelton, 364 U.S. at 485-86; Talley,

362 U.S. at 64; Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. Waterfront

Comm’n of New York, 667 F.2d 267, 272 (2d Cir.1981); Pollard v. Roberts, 283

F. Supp. 248, 258 (E.D. Ark. 1968), aff’d, 393 U.S. 14, 89 S. Ct. 47, 21 L. Ed. 2d

14 (1968)).

Moreover, as the Second Circuit has recognized, “a factual record of past

harassment is not the only situation in which courts have upheld a First

Amendment right of non-disclosure.” Int’l Longshoremen’s Ass’n, 667 F.2d at

271. Rather,

[t]he underlying inquiry must always be whether a compelling governmental interest justifies any governmental action that has “the practical effect ‘of discouraging’ the exercise of constitutionally protected political rights,” “even if any deterrent effect . . . arises . . . as an unintended but inevitable result of the government’s conduct in requiring disclosure.”

Int’l Longshoremen’s Ass’n, 667 F.2d at 271 (citation omitted) (quoting NAACP,

357 U.S. at 461; Buckley, 424 U.S. at 65). Based on this principle, courts,

including the United States Supreme Court, have in various circumstances

“adopted a commonsense approach [that] recognized that a chilling effect was

38 No. 83700-1-I/39

inevitable.” Int’l Longshoremen’s Ass’n, 667 F.2d at 272 (citing Shelton, 364 U.S.

at 486; Pollard, 283 F. Supp. at 258).23

Here, the Does’ declarations state that they have “a significant fear that

disclosure of [their] attendance at the January 6 Rally would result in significant

jeopardy to [their] personal safety and [their] ability to provide effective law

enforcement to the community.” Two of the Does described their fears for the

safety and well-being of their families were their identities disclosed, one noting

“the extreme volatility that has gone hand in hand with politics in this region over

the last year regarding law enforcement.” The Does additionally submitted the

declarations of other SPD officers who stated that they had endured harassment

and threats made against them and their families from members of the public.

23 Such a “commonsense approach”—which assumes a “chilling effect” on speech and

associational rights—has been utilized when disclosure was required to be made to a public employer and when the individuals seeking anonymity espoused beliefs unpopular in their communities. For instance, in Shelton, the Supreme Court recognized that impingement of teachers’ rights to free association “is conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made.” 364 U.S. at 486. “[T]he pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy.” Shelton, 364 U.S. at 486; see also Int’l Longshoremen’s Ass’n, 667 F.2d at 272 (recognizing that the investigatory body had “pervasive control over the economic livelihood” of those seeking anonymity). Likewise, in Pollard, there was “no evidence” that the individuals seeking anonymity had “been subjected to reprisals on account of” their contributions to the Arkansas Republican Party. 283 F. Supp. at 258. Nevertheless, given the unpopularity of the party in the state at that time, the court held that “it would be naïve not to recognize” that disclosure would subject the contributors to “potential economic or political reprisals,” thus discouraging the exercise of constitutional rights. Pollard, 283 F. Supp. at 258. The court described the constitutional injury thereby inflicted thusly: To the extent that a public agency or officer unreasonably inhibits or discourages the exercise by individuals of their right to associate with others of the same political persuasion in the advocacy of principles and candidates of which and of whom they approve, and to support those principles and candidates with their money if they choose to do so, that agency or officer violates private rights protected by the First Amendment. Pollard, 283 F. Supp. at 258.

39 No. 83700-1-I/40

Consistent with the cases cited above, we conclude that the Does have

submitted sufficient evidence that disclosure of their identities would discourage

the exercise of political speech and associational rights.24 In so holding, we are

mindful that it is not only the Does’ constitutional rights that may be “chilled” by

disclosure here, but also those of other public employees whose employers are

subject to the PRA. Indeed, as the United States Supreme Court has

recognized, in addition to the impact on the exercise of rights by those seeking

anonymity, there is a “more subtle and immeasurable effect upon those who tend

to adhere to the most orthodox and uncontroversial views and associations in

order to avoid a similar fate at some future time.” Watkins, 354 U.S. at 197-98.

We conclude that disclosure of the Does’ identities in the requested

records constitutes governmental action that would impinge their First

Amendment rights. This is so despite the public nature of the January 6 rally.

We find unmeritorious Sueoka’s contentions that the Does relinquished their

constitutional rights by cooperating with the OPA’s investigation or that they

failed to demonstrate that disclosure would discourage the exercise of such

rights. Having so concluded, we must determine whether the State’s interest in

impinging those rights is sufficient to nevertheless mandate disclosure.

24 We reach this conclusion notwithstanding Sueoka’s assertion, in supplemental briefing,

that the identities of the Does are already publicly known. As our Supreme Court has held, an individual’s statutory right to privacy is not nullified because some members of the public may already know that individual’s identity. Bainbridge Island Police Guild, 172 Wn.2d at 414 (“[J]ust because some members of the public may already know the identity of the person in the report does not mean that an agency does not violate the person’s right to privacy by confirming that knowledge through its production.”). The same is certainly true of the right to privacy inhering in the First Amendment to the United States Constitution.

40 No. 83700-1-I/41

(d)

Before we do so, however, we must address a related contention. In a

statement of additional authorities submitted following oral argument, Sueoka

asserts that, because the Does did not notify the attorney general of any intent to

challenge the constitutionality of the PRA, we cannot consider whether the PRA

violates the federal constitution if it is construed so as to require disclosure of

unredacted records in this case.

This ground has been previously trod. Indeed, the District Court of the

Western District of Washington considered this very issue in Roe v. Anderson,

2015 WL 4724739 (W.D. Wash. 2015), which we cite as evidence of our state

attorney general’s official position on this aspect of PRA analysis. In the cited

case, certain erotic dancers and managers of an erotic dance studio sought to

enjoin the disclosure of their personal information pursuant to a PRA request.

Anderson, 2015 WL 4724739, at *1. They asserted that disclosure would violate

their constitutional rights to privacy and free expression and sought a declaration

that the PRA, as applied to them, was unconstitutional. Anderson, 2015 WL

4724739, at *1.

At the court’s invitation, the Washington attorney general filed an amicus

brief asserting that the PRA “does not require the disclosure of information

protected from disclosure by the Constitution” because “its exemptions

incorporate any constitutionally-required limitation on such disclosures.”

Anderson, 2015 WL 4724739, at *1 (emphasis added). The “other statute[s]”

provision, RCW 42.56.070(1), the attorney general explained, is a “‘catch all’

41 No. 83700-1-I/42

saving clause” that “does not require a disclosure that would violate the

Constitution.” Anderson, 2015 WL 4724739, at *2 (emphasis added). Citing

decisional authority from our Supreme Court, the attorney general clarified that

“[i]f the requested records are constitutionally protected from public disclosure, that protection exists without any need of statutory permission, and may constitute an exemption under the PRA even if not implemented through an explicit statutory exemption.” “In other words, it is not necessary to read the PRA in conflict with the Constitution when the Act itself recognizes and respects other laws (including constitutional provisions) that mandate privacy or confidentiality.”

Anderson, 2015 WL 4724739, at *2-3 (emphasis added).

The district court held that “[t]he State is correct.” Anderson, 2015 WL

4724739, at *3. “The PRA, by design, cannot violate the Constitution, and

constitutional protections (such as freedom of expression) are necessarily

incorporated as exemptions, just like any other express exemption enumerated in

the PRA.” Anderson, 2015 WL 4724739, at *3.

We agree with and adopt this analysis. Thus, once the constitutional right

is established and the constitutional injury that disclosure would cause is shown,

it is entirely unnecessary for the citizen to establish an additional entitlement to

an injunction in order to preclude disclosure. The law is clear and the principle

simple—the government may not violate a person’s First Amendment rights,

even in the absence of an injunction specifically forbidding it from doing so.25

The United States Supreme Court has repeatedly affirmed that

25 See discussion infra § III C.

42 No. 83700-1-I/43

[t]he right to privacy in one’s political associations and beliefs will yield only to a “‘subordinating interest of the State [that is] compelling,’” NAACP[, 357 U.S.] at 463 (quoting Sweezy, 354 U.S. [at 265] (opinion concurring in result)), and then only if there is a “substantial relation between the information sought and [an] overriding and compelling state interest.” Gibson[, 372 U.S. at 546].

Brown, 459 U.S. at 91-92 (some alterations in original). Thus, having concluded

that disclosure of the Does’ identities in the requested records would impinge

their First Amendment rights, we must determine whether an overriding and

compelling state interest nevertheless requires such disclosure.

For its part, the City contends that a less stringent standard should apply

because, according to the City, “public employees have diminished First

Amendment rights, even for purely private speech.”26 Not so. Police officers,

such as the Does, “are not relegated to a watered-down version of constitutional

rights.” Garrity, 385 U.S. at 500. The City’s assertion to the contrary, reliant as it

is on inapposite decisional authority, is unpersuasive.

We conclude that the State has no compelling interest in disclosing the

Does’ identities in the requested records. The state interest in disclosing the

entirety of a particular public record is illuminated by the purpose of the PRA and

its scope, as determined by our legislature and Supreme Court. Such

considerations demonstrate that the state interest here falls short of the standard

required to impinge the Does’ First Amendment rights. We thus hold that the

State has no compelling interest in disclosing the Does’ identities in the

requested records.

26 City of Seattle, Suppl. Mem. at 2.

43 No. 83700-1-I/44

(a)

We first address the City’s argument, set forth in supplemental briefing,

that the state actor need not demonstrate a compelling interest in order to

impinge the Does’ constitutional rights. The City, itself an employer of vast

numbers of public employees, asserts that “public employees have diminished

First Amendment rights, even for purely private speech.”27 Hence, the City

contends, the constitutional rights of public employees, unlike those of other

citizens, can be impinged absent the demonstration of a compelling state

interest. We disagree.

When the State seeks to compel disclosure of an individual’s political

beliefs and associations, it can do so only by demonstrating a compelling state

interest with sufficient relation to the information sought to be disclosed. See,

e.g., Brown, 459 U.S. at 91-92; Gibson, 372 U.S. at 546; NAACP, 357 U.S. at

463; Sweezy, 354 U.S. at 265. That the State’s interest must be compelling

reflects the United States Supreme Court’s recognition that “political freedom of

the individual” is a “fundamental principle of a democratic society,” Sweezy, 354

U.S. at 250, and that “compelled disclosure, in itself, can seriously infringe on

privacy of association and belief guaranteed by the First Amendment.” Buckley,

424 U.S. at 64.

Moreover, as we have discussed, our nation’s highest Court has rejected

the notion that public employees are not entitled to the same stature of

constitutional rights as are other citizens. In 1967, the Court in Garrity

27 City of Seattle, Suppl. Mem. at 2.

44 No. 83700-1-I/45

considered whether police officers, by virtue of being compelled to cooperate in

an investigation by the New Jersey Attorney General, relinquished the

constitutional right against self-incrimination. 385 U.S. at 494-98. The Court

determined that the statements of the police officers, who were given the choice

between self-incrimination and losing their livelihoods, were not voluntary.

Garrity, 385 U.S. at 497-98. In so holding, the Court “conclude[d] that policemen,

like teachers and lawyers, are not relegated to a watered-down version of

constitutional rights.” Garrity, 385 U.S. at 500.

In asserting to the contrary—that the Does are, indeed, condemned to a

diluted version of First Amendment rights—the City urges us to apply the

“balancing test” set forth by the Supreme Court in Pickering v. Board of

Education of Township High School District 205, Will County, Ill., 391 U.S. 563,

88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).28 The City’s reliance on Pickering is

misplaced.

In Pickering, a public school teacher submitted to a local newspaper a

letter regarding a proposed tax increase that was critical of the manner in which

the school board and superintendent had “handled past proposals to raise new

revenue for the schools.” 391 U.S. at 564. The teacher was dismissed from his

position pursuant to an Illinois statute that permitted such dismissal for actions

detrimental to the interests of the school system. Pickering, 391 U.S. at 564-65.

He thereafter filed suit, asserting that the Illinois statute was unconstitutional as

28 See City of Seattle, Suppl. Mem. at 6 (“It is this balancing test, not strict scrutiny, that

applies to disclosure of the public records containing employees’ speech.”).

45 No. 83700-1-I/46

applied pursuant to the First and Fourteenth Amendments. Pickering, 391 U.S.

at 565.

In considering the constitutionality of the Illinois statute, the Court

recognized that “the State has interests as an employer in regulating the speech

of its employees that differ significantly from those it possesses in connection

with regulation of the speech of the citizenry in general.” Pickering, 391 U.S. at

568. Thus, the Court announced what has come to be known as the “Pickering

balancing test,”29 which seeks to “arrive at a balance between the interests of the

[public employee], as a citizen, in commenting upon matters of public concern

and the interest of the State, as an employer, in promoting the efficiency of the

public services it performs through its employees.” Pickering, 391 U.S. at 568.

However, the teacher’s statements in Pickering were “neither shown nor

[could] be presumed to have in any way either impeded the teacher’s proper

performance of his daily duties in the classroom or to have interfered with the

regular operation of the schools generally.” 391 U.S. at 572-73 (footnote

omitted). The Court held that, in such circumstances, “the interest of the school

administration in limiting teachers’ opportunities to contribute to public debate is

not significantly greater than its interest in limiting a similar contribution by any

member of the general public.” Pickering, 391 U.S. at 573. In other words, the

“Pickering balancing test,” which the City urges us to apply here, is applicable

29 See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 164 L. Ed. 2d 689

(2006) (describing the “two inquiries to guide interpretation of the constitutional protections accorded to public employee speech” as set forth in “Pickering and the cases decided in its wake”); Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 900, 904-05 (9th Cir. 2021) (describing the “Pickering balancing test”). Neither of these opinions, both of which are cited by the City, is apposite to the circumstances presented in this case.

46 No. 83700-1-I/47

only when a public employee’s speech may affect the employer’s operations.

See also Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 164 L. Ed. 2d

689 (2006) (“A government entity has broader discretion to restrict speech when

it acts in its role as employer, but the restrictions it imposes must be directed at

speech that has some potential to affect the entity’s operations.” (emphasis

added)). Only then may a government employer have “an adequate justification

for treating the employee differently from any other member of the general

public,” thus permitting it to restrict the public employee’s speech. Garcetti, 547

U.S. at 418.

Indeed, in Pickering, the United States Supreme Court explicitly rejected

the proposition that public employees are entitled to lesser constitutional

protections simply by virtue of their public employment:

To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E.g., Wieman v. Updegraff, 344 U.S. 183[, 73 S. Ct. 215, 97 L. Ed. 2d 216] (1952); Shelton v. Tucker, 364 U.S. 479[, 81 S. Ct. 247, 5 L. Ed. 2d 231] (1960); Keyishian v. Board of Regents, 385 U.S. 589[, 87 S. Ct. 675, 17 L. Ed. 2d 629] (1967). “[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” Keyishian[, 385 U.S.] at 605-06.

391 U.S. at 568 (some alterations in original).

Put simply, the notion that the Does, as public employees, “have curtailed

First Amendment rights,” as the City brazenly asserts,30 is directly contradicted

30 City of Seattle. Suppl. Mem. at 5.

47 No. 83700-1-I/48

by United States Supreme Court decisional authority. Unlike this case, each of

the cases cited by the City involves an adverse employment action based on a

speech restriction that precluded public employees from engaging in speech

alleged to injuriously impact their employer’s operations.31 Indeed, it is only

when a public employee’s speech “has some potential to affect [the employer’s]

operations” that the employer may have “an adequate justification for treating the

employee differently from any other member of the general public.” Garcetti, 547

U.S. at 418. This rule is premised on the recognition that the government

possesses a “legitimate purpose in ‘promot[ing] efficiency and integrity in the

discharge of official duties, and . . . maintain[ing] proper discipline in the public

service.’” Connick v. Myers, 461 U.S. 138, 150-51, 103 S. Ct. 1684, 75 L. Ed. 2d

708 (1983) (some alterations in original) (quoting Ex parte Curtis, 106 U.S. 371,

373, 1 S. Ct. 381, 27 L. Ed. 232 (1882)).32 Such principles do not apply to the

facts of this case.33

31 See Progressive Democrats for Soc. Just. v. Bonta, 588 F. Supp. 3d 960 (N.D. Cal.

2022); Garcetti, 547 U.S. 410; City of San Diego, Cal. v. Roe, 543 U.S. 77, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004); Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994); Pickering, 391 U.S. 563; Hernandez v. City of Phoenix, 43 F. 4th 966 (9th Cir. 2022); Moser, 984 F.3d 900; Berry v. Dep’. of Soc. Servs., 447 F.3d 642 (9th Cir. 2006). For the reasons described above, each of these cases is inapposite here. 32 In Connick, Justice Brennan disagreed with the majority’s balancing of the competing

considerations set forth in Pickering. 461 U.S. at 157-58 (Brennan, J., dissenting). However, as pertinent here, he adeptly explained that the government, as a public employer, has an interest in regulating employee speech only when such speech may impact the government’s ability to perform its duties. He wrote: The balancing test articulated in Pickering comes into play only when a public employee’s speech implicates the government’s interests as an employer. When public employees engage in expression unrelated to their employment while away from the workplace, their First Amendment rights are, of course, no different from those of the general public. Connick, 461 U.S. at 157 (Brennan, J., dissenting) (citing Pickering, 391 U.S. at 574). 33 The City also asserts that our Supreme Court’s decision in Service Employees

International Union Local 925 v. University of Washington, 193 Wn.2d 860, 447 P.3d 534 (2019) (SEIU), indicates that “disclosure of public records is mandated by the PRA notwithstanding any speech rights or a chilling effect thereon.” City of Seattle, Suppl. Mem. at 3. We disagree.

48 No. 83700-1-I/49

Here, the Does’ employer, SPD, did not impose a restriction on the Does’

speech. Nor does the speech at issue—the Does’ attendance at a political rally

and their statements regarding their political views and affiliations—have any

impact on their employer’s operations. Indeed, any allegation that the Does

engaged in conduct contrary to their employer’s policies was found to be

unsustained.

We decline the City’s invitation to contravene United States Supreme

Court decisional authority in order to restrict public employee speech in

circumstances beyond those in which such speech may interfere with the public

employer’s operations. Instead, we take the United States Supreme Court at its

word that police officers “are not relegated to a watered-down version of

constitutional rights.” Garrity, 385 U.S. at 500; see also Pickering, 391 U.S. at

568. Similarly, we recognize the Supreme Court’s repeated affirmations that

“[t]he right to privacy in one’s political associations and beliefs will yield only to a

‘subordinating interest of the State [that is] compelling,’ and then only if there is a

‘substantial relation between the information sought and [an] overriding and

compelling state interest.’” Brown, 459 U.S. at 91-92 (second and third

In that decision, our Supreme Court addressed only whether particular faculty e-mails relating to union organizing constitute “public records” pursuant to the PRA. SEIU, 193 Wn.2d at 867-76. Although the labor union seeking to enjoin disclosure of the requested e-mails asserted that “their release would chill union organizing efforts, restrain speech, and violate individuals’ privacy rights,” SEIU, 193 Wn.2d at 865, our Supreme Court explicitly stated that its “holding on the ‘scope of employment’ test does not dispose of” the labor union’s other arguments, including “assertions of statutory and constitutional exemptions from PRA coverage.” SEIU, 193 Wn.2d at 876. Contrary to the City’s assertion, our Supreme Court did not suggest in that decision that the constitutional rights of our state’s citizens can be summarily dismissed on the basis of a legislative enactment. While we agree with the City that the PRA is an important statute, it nevertheless remains merely a statute. See Freedom Found., 178 Wn.2d at 695.

49 No. 83700-1-I/50

alterations in original) (citation and internal quotations marks omitted) (quoting

Sweezy, 354 U.S. at 265; Gibson, 372 U.S. at 546). Accordingly, only if an

overriding and compelling state interest exists to impinge the Does’ constitutional

rights may their identities be disclosed in the requested records. As discussed

below, we determine that no such compelling interest exists.

(b)

The scope of the State’s interest in public record disclosure—and, thus,

whether the City, as a state actor, has a compelling interest in disclosing the

Does’ identities—is illuminated by the purpose of the PRA’s disclosure mandate.

“The basic purpose of the [PRA] is to provide a mechanism by which the public

can be assured that its public officials are honest and impartial in the conduct of

their public offices.” Cowles Publ’g Co., 109 Wn.2d at 719. The statute “ensures

the sovereignty of the people and the accountability of the governmental

agencies that serve them by providing full access to information concerning the

conduct of government.” Predisik, 182 Wn.2d at 903. Similarly, our legislature

has defined the policy of the PRA as such: “That, mindful of the right of

individuals to privacy and of the desirability of the efficient administration of

government, full access to information concerning the conduct of government on

every level must be assured as a fundamental and necessary precondition to the

sound governance of a free society.” RCW 42.17A.001(11); see also In re

Request of Rosier, 105 Wn.2d 606, 611, 717 P.2d 1353 (1986) (recognizing the

policy underlying the statute as “allow[ing] public scrutiny of government, rather

50 No. 83700-1-I/51

than . . . promot[ing] scrutiny of particular individuals who are unrelated to any

governmental operation”).

To this end, while the PRA contains a broad mandate for disclosure, our

legislature also included in the statute an exemption whereby “[p]ersonal

information in files maintained for employees . . . of any public agency” are not

subject to disclosure “to the extent that disclosure would violate their right to

privacy.” RCW 42.56.230(3). This “right to privacy” is “invaded or violated,” such

that the statutory exemption applies, when disclosure of the information would be

“highly offensive to a reasonable person” and is “not of legitimate concern to the

public.”34 RCW 42.56.050.

The PRA does not define the “right to privacy.” Our Supreme Court thus

sought to “‘fill [this] definitional void’” by adopting the common law tort definition

set forth in the Restatement. Cowles Publ’g Co., 109 Wn.2d at 721 (quoting

Hearst Corp. v. Hoppe, 90 Wn.2d 123, 136, 580 P.2d 246 (1978)); see

RESTATEMENT (SECOND) OF TORTS §652D (AM. LAW INST. 1977). Employing this

definition, and consistent with the purpose of the PRA, our Supreme Court has

deemed significant to the question of privacy whether a public employee’s

conduct “occurred in the course of public service.” Cowles Publ’g Co., 109

Wn.2d at 726. “Instances of misconduct of a police officer while on the job are

not private, intimate, personal details of the officer’s life,” but rather, “are matters

34 We do not hold that the personal information exemption, RCW 42.56.230(3), a

statutory exemption set forth within the PRA, precludes disclosure of the Does’ identities in the requested records. Rather, as discussed supra, it is the First Amendment to the United States Constitution that precludes such disclosure, absent an overriding and compelling state interest. Nevertheless, the purpose of the PRA and the scope of its disclosure mandate, as set forth by our legislature and decisional authority interpreting the act, illuminates the state interest here at issue.

51 No. 83700-1-I/52

with which the public has a right to concern itself.” Cowles Publ’g Co., 109

Wn.2d at 726. Premised on this principle, the court held that “a law enforcement

officer’s actions while performing his public duties or improper off duty actions in

public which bear upon his ability to perform his public office” are not within the

ambit of conduct exempt from disclosure due to statutory “personal privacy.”

Cowles Publ’g Co., 109 Wn.2d at 727.

In addition, in determining whether a public employee’s statutory right to

privacy is implicated, the court has distinguished between “substantiated” and

“unsubstantiated” allegations. “[W]hen a complaint regarding misconduct during

the course of public employment is substantiated or results in some sort of

discipline, an employee does not have a right to privacy in the complaint.”

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 215,

189 P.3d 139 (2008). However, the court has held that public employees have a

statutory right to privacy in their identities in connection with unsubstantiated

allegations of sexual misconduct, “because the unsubstantiated allegations are

matters concerning [the employees’] private lives.” Bainbridge Island Police

Guild, 172 Wn.2d at 413; see also Bellevue John Does, 164 Wn.2d at 215-16.

“An unsubstantiated or false accusation,” the court reasoned, “is not an action

taken by an employee in the course of performing public duties.” Bellevue John

Does, 164 Wn.2d at 215.

Similarly, our Supreme Court has concluded that whether allegations

against a public employee are substantiated bears on whether disclosure of the

employee’s identity is a matter of “legitimate” public concern. Bainbridge Island

52 No. 83700-1-I/53

Police Guild, 172 Wn.2d at 416; Bellevue John Does, 164 Wn.2d at 221. Thus,

consistent with the PRA’s purpose to enable the public to oversee governmental

agencies, the court determined that the public has no legitimate interest in the

identities of public employees against whom unsubstantiated allegations of

misconduct were asserted. Bellevue John Does, 164 Wn.2d at 220. This is

because, when the allegations are unsubstantiated, precluding disclosure of the

employee’s identity would “not impede the public’s ability to oversee” government

investigations into alleged employee misconduct. Bellevue John Does, 164

Wn.2d at 220. Rather, disclosure in such circumstances, the court reasoned,

“‘serve[s] no interest other than gossip and sensation.’” Bellevue John Does, 164

Wn.2d at 221 (quoting Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405,

129 Wn. App. 832, 854, 120 P.3d 616 (2005)).

The state interest in disclosure pursuant to the PRA is to uphold the

purpose of the statute—that is, to enable the public to ensure “that its public

officials are honest and impartial in the conduct of their public offices.” Cowles

Publ’g Co., 109 Wn.2d at 719 (emphasis added); see also RCW 42.56.030 (“The

people insist on remaining informed so that they may maintain control over the

instruments that they have created.”). To that end, in the context of defining the

scope of statutory exemptions to disclosure, our Supreme Court has determined

that disclosure of the identities of public employees is not permitted when (1) the

allegations asserted against the employees are unsubstantiated and (2) the

conduct did not occur in the course of public service or occur off-duty and impact

the performance of public duties. Bainbridge Island Police Guild, 172 Wn.2d at

53 No. 83700-1-I/54

413; Bellevue John Does, 164 Wn.2d at 213-16, 221; Cowles Publ’g Co., 109

Wn.2d at 726. In other words, in such circumstances, the State does not have

an interest in disclosing the employees’ identities.

Significantly, in those cases, whether disclosure of the public officials’

identities was precluded was determined pursuant to statutory exemptions, not

premised upon the disclosure’s impingement on constitutional First Amendment

rights. Thus, the public officials’ interests at issue in those cases, not being of

constitutional import, were less significant than those presented here, where the

Does’ First Amendment rights are implicated. Nevertheless, here, as in those

cases, the Does’ alleged misconduct did not occur in the course of their public

duties, and the allegations against the Does were determined to be

unsustained.35 Even when constitutional rights were not implicated by

disclosure, those same circumstances have been deemed by our legislature and

Supreme Court to fall outside the ambit of the state interest in such disclosure.

Thus, here, where the Does’ constitutional rights would be impinged by

disclosure, the state interest cannot be said to be compelling, such that

disclosure would nevertheless be permitted.36

35 We note that, while some of the OPA’s findings were “not sustained” because the

allegations were determined to be “unfounded,” others were unsustained because the investigation as to those findings was deemed to be “inconclusive.” However, an “inconclusive” finding remains a finding that the allegations were unsustained; it neither constitutes a finding against the officer nor authorizes disciplinary action. Accordingly, we treat the “inconclusive” unsustained findings in the same manner as the “unfounded” unsustained findings. 36 Sueoka asserts that the trial court properly determined that the public has a legitimate

interest in disclosure of the Does’ identities in the requested records because OPA Director Andrew Myerberg may have previously represented one of the Does in a civil rights case. This purported conflict, Sueoka contends, may have undermined the investigation. However, even when only a statutory privacy interest is implicated, Washington courts have held that complete records need not be disclosed for the public interest of government oversight to be achieved. See, e.g., Bainbridge Island Police Guild, 172 Wn.2d at 416 (“Although lacking a legitimate interest in the name of a police officer who is the subject of an

54 No. 83700-1-I/55

The United States Supreme Court has recognized that “[t]he public is, of

course, entitled to be informed concerning the workings of its government. That

cannot be inflated into a general power to expose where the predominant result

can only be an invasion of the private rights of individuals.” Watkins, 354 U.S. at

200 (footnote omitted). Here, disclosure of the Does’ identities would fulfill only

the “impermissible [objective] of exposure for exposure’s sake.” Uphaus, 360

U.S. at 82 (Brennan, J., dissenting).

Based on our legislature’s and Supreme Court’s delineation of the

purpose of the PRA’s disclosure mandate, we conclude that the State has no

compelling interest in disclosure of the Does’ identities in the requested records.

Accordingly, because the Does have established a constitutional privacy right

that would be impinged by disclosure, the superior court erred by denying the

Does’ motion for a preliminary injunction precluding such disclosure.37

unsubstantiated allegation of sexual misconduct, the public does have a legitimate interest in how a police department responds to and investigates such an allegation against an officer.”); Bellevue John Does, 164 Wn.2d at 220 (“Precluding disclosure of the identities of teachers who are subjects of unsubstantiated allegations will not impede the public’s ability to oversee school districts’ investigations of alleged teacher misconduct.”). Indeed, our Supreme Court has made plain that a public employee’s “right to privacy does not depend on the quality of the [public employer’s] investigations.” Bellevue John Does, 164 Wn.2d at 223. Here, given the constitutional right at stake, we hold that the State has no compelling interest in disclosure of the Does’ identities for this purpose. Moreover, “[a]n agency should look to the contents of the document and not the knowledge of third parties when deciding if the subject of a report has a right to privacy in their identity.” Bainbridge Island Police Guild, 172 Wn.2d at 414. In Bainbridge Island Police Guild, our Supreme Court held that notwithstanding the fact that some members of the public might know the identity of the individual identified in the records, the agency must nevertheless refuse to disclose those records if an exemption exists. 172 Wn.2d at 414. Otherwise, agencies would be required to “engage in an analysis of not just the contents of the report” but also of outside knowledge regarding the incident described therein. Bainbridge Island Police Guild, 172 Wn.2d at 414. The same logic applies here. Additionally, the City, in evaluating a records request, cannot be charged with presuming the need to disclose individuals’ identities in investigative records on the chance of potential conflict of interest of the investigator that is not established in the records themselves. Such a presumption would gut the disclosure exemptions of the PRA. 37 The Does sought a preliminary injunction precluding the disclosure of their identities in

the requested records. They did not seek to prevent disclosure of redacted versions of those

55 No. 83700-1-I/56

(c)

We recognize that much of the United States Supreme Court’s

jurisprudence establishing a constitutional privacy right to anonymity in political

belief and association, which is grounded in the First Amendment to the United

States Constitution, predates the Court’s modern formulation of the strict scrutiny

standard applicable to governmental action impinging such rights. See Reed v.

Town of Gilbert, Ariz., 576 U.S. 155, 167, 135 S. Ct. 2218, 192 L. Ed. 2d 236

(2015) (recognizing that the Court’s decision in Button, 371 U.S. 415, “predated

[its] more recent formulations of strict scrutiny”).38 However, even applying these

“more recent formulations” of the standard, Town of Gilbert, 576 U.S. at 167, the

result herein remains unchanged.

records. Thus, we do not consider whether the redacted records are subject to disclosure pursuant to the PRA. We do note, however, that once the Does’ identities and other identifying information are redacted from the requested records, their constitutional rights are no longer implicated. Accordingly, it is the PRA, not federal constitutional principles, that dictate whether the redacted records may be disclosed. As no party seeks to preclude such disclosure, that issue is not before us. However, we note that, when a constitutional right would not thereby be infringed, the State has an interest in permitting disclosure of public records to enable government oversight, thus fulfilling the purpose of the PRA. See, e.g., Bainbridge Island Police Guild, 172 Wn.2d at 416 (“Although lacking a legitimate interest in the name of a police officer who is the subject of an unsubstantiated allegation of sexual misconduct, the public does have a legitimate interest in how a police department responds to and investigates such an allegation against an officer.”); Bellevue John Does, 164 Wn.2d at 220 (“Precluding disclosure of the identities of teachers who are subjects of unsubstantiated allegations will not impede the public’s ability to oversee school districts’ investigations of alleged teacher misconduct.”). See also RCW 42.56.210 (requiring disclosure of records when exempted information can be redacted therefrom). “[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton, 364 U.S. at 488. Here, the purposes of the PRA are achieved through disclosure of the redacted records. 38 The Court in Button held that a Virginia state law purporting to regulate the legal

profession unconstitutionally infringed on “the [First Amendment] right of the NAACP and its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights.” 371 U.S. at 428. This decision is among those cited by the Court for the proposition that “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley, 424 U.S. at 64 (citing Gibson, 372 U.S. 539; Button, 371 U.S. 415; Bates, 361 U.S. 516; Shelton, 364 U.S. 479; NAACP, 357 U.S. 449).

56 No. 83700-1-I/57

As demonstrated by the profusion of legislatively enacted exceptions to

our state’s public records law, there is no compelling government interest in

disclosure of the unredacted requested records. Rather, the constitutionally

mandated narrow tailoring here requires precisely the remedy sought by the

Does—the redaction of their names and personal identifying information from the

requested records prior to disclosure. Thus, we hold that, applying the United

States Supreme Court’s modern formulation of the strict scrutiny standard,

disclosure of the requested records in redacted form serves to protect the First

Amendment interests at stake while allowing for the attainment of the

government’s legitimate interest in disclosure.

The Supreme Court’s modern formulation of the strict scrutiny standard,

as pertinent here, is articulated in Citizens United v. Federal Election

Commission, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), in which

the Court pronounced:

Speech is an essential mechanism for democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. . . . For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.”

Citizens United, 558 U.S. at 339-40 (citation omitted) (quoting Fed. Election

Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464, 127 S. Ct. 2652, 168

57 No. 83700-1-I/58

L. Ed. 2d 329 (2007)).39 Thus, the Supreme Court’s more recent formulations of

the strict scrutiny standard require that government restrictions on protected

speech be “narrowly tailored” to achieving the government’s compelling interest,

a mandate that was not explicitly articulated in the Court’s previous jurisprudence

establishing a First Amendment privacy right in political belief and association.

See, e.g., Brown, 459 U.S. 87; Gibson, 372 U.S. 539; Bates, 361 U.S. 516;

Shelton, 364 U.S. 479; NAACP, 357 U.S. 449.

The Citizens United explication of the modern formulation is grounded in

the Court’s historical jurisprudence and finds its genesis in the Court’s statement

in McIntyre that “[w]hen a law burdens core political speech, we apply ‘exacting

scrutiny,’ and we uphold the restriction only if it is narrowly tailored to serve an

overriding state interest.” 514 U.S. at 347.

As discussed above, our Supreme Court’s decisional authority and the

policies animating the PRA lead to the inexorable conclusion that, here, the

government has no compelling interest in disclosure of the Does’ identities in the

requested records. Rather, the government’s interest in the disclosure of public

records is to uphold the PRA’s purpose of enabling the public to ensure “that its

public officials are honest and impartial in the conduct of their public offices.”

Cowles Publ’g Co., 109 Wn.2d at 719. Further evidencing the absence of a

39 We acknowledge that differing levels of scrutiny apply to various claims of infringement

on federal constitutional rights. See, e.g., Town of Gilbert, 576 U.S. at 172 (in the context of federal free speech guarantees, distinguishing between those laws subject to strict scrutiny analysis and those “subject to lesser scrutiny”); Progressive Democrats for Soc. Just., 588 F. Supp. 3d at 975-76 (describing differing levels of scrutiny in the context of the First and Fourteenth Amendments, including rational basis review and strict scrutiny). However, no party credibly seeks to establish that other such constructs are applicable in this case. We take the United States Supreme Court at its word in Citizens United, 558 U.S. at 340, that the strict scrutiny standard applies in cases such as this.

58 No. 83700-1-I/59

compelling state interest in total disclosure of all records, our legislature has

enacted a plethora of exceptions to the PRA’s disclosure mandate—in fact, as of

March 2022, there were 632 such legislatively enacted exceptions.40 Without

question, this proliferation of exceptions to the PRA’s disclosure mandate

renders implausible any argument that a compelling state interest in disclosure of

the Does’ identities exists here. Rather, the government’s interest in disclosure

of the requested records inheres only in making public a redacted version of

those records.

When applying the modern strict scrutiny standard, we must ensure that

the government’s application of the PRA—the state action at issue here—is

narrowly tailored to serve its legitimate interest in the disclosure of public records.

See Citizens United, 558 U.S. at 340. Such narrow tailoring compels us to

identify the “least restrictive alternative” that will achieve the pertinent state

interest. Ashcroft v. Am. Civ. Liberties Union, 542 U.S. 656, 666, 124 S. Ct.

2783, 159 L. Ed. 2d 690 (2004). “The purpose of [this] test is to ensure that

speech is restricted no further than necessary to achieve the [government’s]

goal, for it is important to ensure that legitimate speech is not chilled or

punished.” Ashcroft, 542 U.S. at 666.

Here, the very remedy sought by the Does—redaction of their names and

identifying information from the requested records—is precisely the narrow

40 See Appendix A (“Public Records Exemptions Accountability Committee – Sunshine

Committee,” Schedule of Review, updated March 2022). Original available at https://agportal- s3bucket.s3.amazonaws.com/uploadedfiles/Schedule%20of%20Review%20Update%20March% 202022.pdf.

59 No. 83700-1-I/60

tailoring that serves to protect the First Amendment rights at stake while

simultaneously allowing for the attainment of the government’s legitimate interest

in public records disclosure. Thus, applying the United States Supreme Court’s

more recent formulations of strict scrutiny, which require that governmental

action impinging on speech rights be narrowly tailored to serve a compelling

state interest, we reach the same conclusion as when applying the Court’s earlier

jurisprudence. In both circumstances, we conclude that disclosure of the

unredacted requested records would unconstitutionally impinge on the Does’

federal privacy rights—rights that are grounded in First Amendment guarantees.

The government’s sole legitimate interest in disclosure here is in making public a

redacted version of the requested records that excludes the Does’ names and

other identifying information.41

C

Sueoka and the City next assert that, even if the requested records are

exempt from disclosure, the Does are nevertheless entitled to a preliminary

injunction only if they can additionally demonstrate that they are likely to succeed

on the merits of meeting the statutory injunction standard set forth in the PRA.

We disagree.

When the disclosure of an individual’s identity in public records would

impinge a First Amendment right to privacy, the State may not place on that

individual an additional burden to vindicate that right. In such a circumstance,

41 An appropriate grant of such relief, as articulated by the Ninth Circuit Court of Appeals,

would preclude the disclosure of “‘all personally identifying information or information from which a person’s identity could be derived with reasonable certainty.’” Does 1-10 v. Univ. of Wash., 798 F. App’x 1009, 1010 (9th Cir. 2020).

60 No. 83700-1-I/61

the establishment of the right itself mandates the issuance of an injunction. This

is consistent with our Supreme Court’s jurisprudence establishing that, when a

statutory right precludes disclosure, the individual seeking to vindicate that right

must demonstrate not only that an exemption to disclosure applies, but also that

the PRA’s injunctive relief standard is satisfied. Mindful as we are that we must,

when possible, read statutes to avoid constitutional infirmity, we hold that the

PRA does not require that its statutory injunctive relief standard be met when a

First Amendment right to privacy precludes the disclosure of public records.

The PRA provides that “[t]he examination of any specific public record

may be enjoined if . . . 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

governmental functions.” RCW 42.56.540. This two-part injunctive relief

provision “‘governs access to a remedy’ when records are found to fall within an

exemption” to the PRA’s disclosure mandate. Lyft, 190 Wn.2d at 789 (quoting

PAWS, 125 Wn.2d at 258). Thus, when a statutory exemption to disclosure is

asserted, the trial court may impose an injunction pursuant to RCW 42.56.540

only if the court finds that “a specific exemption applies and that disclosure would

not be in the public interest and would substantially and irreparably damage a

person or a vital government interest.” Soter, 162 Wn.2d at 757.

Our Supreme Court so held in Lyft, 190 Wn.2d 769, wherein the court

addressed whether the disclosure of certain public records could be enjoined

pursuant to a statutory exemption to the PRA’s disclosure mandate. There, the

61 No. 83700-1-I/62

parties seeking to enjoin disclosure asserted that the records at issue contained

trade secrets protected by the federal Uniform Trade Secrets Act (UTSA),

chapter 19.108 RCW. Lyft, 190 Wn.2d at 773. Our Supreme Court determined

that portions of the public records likely met “the definition of ‘trade secrets’ under

the UTSA.” Lyft, 190 Wn.2d at 777, 780-84. The court nevertheless held that

disclosure of the records could be enjoined only if the PRA’s injunctive relief

standard, set forth in RCW 42.56.540, was also satisfied. Lyft, 190 Wn.2d at

773. Thus, our Supreme Court held that “finding an exemption applies under the

PRA does not ipso facto support issuing an injunction.” Lyft, 190 Wn.2d at 786.

It is on the basis of this decisional authority that Sueoka and the City

contend that, in order to obtain the relief that they seek, the Does must

demonstrate that they are likely to succeed on the merits of meeting the PRA’s

two-part statutory injunctive relief standard. However, because disclosure of the

Does’ identities in the requested records would impinge their First Amendment

right to privacy, the argument advanced by Sueoka and the City is untenable.

Requiring that parties seeking to vindicate such rights establish not only the First

Amendment right itself, but also the requirements of the PRA’s injunctive relief

standard, would run afoul of the Supremacy Clause of our federal constitution,

which mandates that courts “‘shall’ regard the ‘Constitution,’ and all laws ‘made in

Pursuance thereof,’ as ‘the supreme Law of the Land.’” Armstrong v. Exceptional

Child Ctr., Inc., 575 U.S. 320, 324, 135 S. Ct. 1378, 191 L. Ed. 2d 471 (2015)

(quoting U.S. CONST. art. VI, cl. 2).42 We cannot interpret the PRA in a manner

42 The Supremacy Clause provides:

62 No. 83700-1-I/63

that would render it unconstitutional. Utter ex rel. State v. Bldg. Indus. Ass’n of

Wash., 182 Wn.2d 398, 434, 341 P.3d 953 (2015) (“We construe statutes to

avoid constitutional doubt.”). Nor does this resolution of the issue do so.

Rather, we read the PRA as consistent with the federal constitution simply

by recognizing the distinction between a legislatively created statutory right and a

federal constitutional right. When the state legislature creates a right, such as a

statutory exemption from the PRA’s disclosure mandate, the legislature may

impose conditions on the exercise of that right. This is precisely what the

legislature has done in enacting the PRA’s injunctive relief standard, RCW

42.56.540. Thus, as our Supreme Court has held, when a statutory right is

implicated, a finding that an exemption applies “does not ipso facto support

issuing an injunction.” Lyft, 190 Wn.2d at 786. Rather, the two-part standard set

forth in RCW 42.56.540 must also be satisfied, as the legislature has imposed

this statutory condition on the exercise of the statutory right against disclosure.

However, here, the Does’ claim of right does not depend upon a statutory

exemption, and the disclosure of the unredacted records would not merely

impinge a statutory right. Rather, the Does’ First Amendment right to privacy in

their political beliefs and associations would be impinged. The significance of

this distinction is readily apparent. Our state legislature can impose a condition

on the exercise of a right created by the legislature itself. However, the

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding. U.S. CONST. art. VI, cl. 2.

63 No. 83700-1-I/64

legislature, having created neither the First nor Fourteenth Amendments, cannot

condition the exercise of this federal constitutional right on whether the Does can

satisfy the statutory injunctive relief standard. Put simply, such a requirement

would authorize a state or local government to violate citizens’ constitutional

rights when they establish the impingement of such rights but are unable to also

demonstrate satisfaction of an additional statutory requirement to obtain

injunctive relief.43 The PRA injunction standard cannot serve as a bar to the

City’s obligation under the Fourteenth Amendment to safeguard the First

Amendment rights of Washington citizens in its application of state law. See,

e.g., Seattle Times Co., 170 Wn.2d 581 (discussed infra at 9-10).

Again, this analysis does not suggest a constitutional infirmity of the PRA.

Rather, recognizing the distinction between legislatively created statutory rights

and the First Amendment constitutional right implicated here, we note that the

43 This very absurdity appears to be consistent with the City’s understanding of its duty to

Washington’s citizens. In supplemental briefing, the City asserts that it has no “freestanding obligation to honor” the constitutional rights of our state’s citizens. Specifically, the City contends that the third party notice provision set forth in the PRA is the proper means for it to address exceptions to disclosure premised on a constitutional right. The City argues, in other words, that it has no obligation to independently honor the constitutional rights of third parties in response to records requests. We do not so hold. When, after receiving notice, an individual seeks injunctive relief premised on a constitutional right, and thereafter establishes both that the right would be impinged by disclosure and that no sufficient interest of the state permits disclosure, the City plainly has an obligation under the Fourteenth Amendment not to violate the individual’s constitutional right, notwithstanding the PRA’s injunction standard. In other words, here, once the constitutional right is established, the City does not have unfettered discretion to either refuse to disclose the records, pursuant to the PRA, or to permit disclosure premised upon the RCW 42.56.540’s standard not being met. Such unfettered discretion of government actors to either honor citizens’ constitutional rights or refuse to honor such rights is anathema to the constitutional rule of law. The City need not serve as the lawyer for every individual mentioned in requested public records. However, when the constitutional right implicated by disclosure of particular requested records is clear, the City must refuse to disclose the records (or the relevant portions thereof). The City must then defend against any challenge to the action by the records requestor, unless, following notice, the individual whose rights are implicated does not object to disclosure. The City’s supreme obligation is to the federal constitution, not to the state statute. See U.S. CONST. art. VI, cl.2.

64 No. 83700-1-I/65

application of RCW 42.56.540 would necessarily mandate the issuance of an

injunction. Given the State’s paramount interest in affirming the federal

constitutional rights of its citizens, disclosure that would impinge the Does’ First

Amendment right to privacy “would clearly not be in the public interest.” RCW

42.56.540. Moreover, because the Does’ constitutional rights would be impinged

by disclosure of the unredacted records, such disclosure would of necessity

“substantially and irreparably damage” the Does. RCW 42.56.540.

Thus, when disclosure is precluded by a First Amendment right to privacy,

rather than a statutory exemption, the establishment of that constitutional right

does, indeed, ipso facto mandate the issuance of an injunction. The State has

no lawful authority to impose an additional requirement on parties seeking to

vindicate their constitutional rights in order to trigger its obligations pursuant to

the Fourteenth Amendment. Because disclosure of the unredacted records

would impinge their First Amendment rights, the Does cannot be required to

additionally demonstrate satisfaction of an injunctive relief standard in order to

obtain the relief they seek, unless that standard is one that is ipso facto satisfied

by virtue of the establishment of the First Amendment right. Because the PRA

standard is one such standard, the Does have met their burden.44

IV

In his cross appeal, Sueoka contends that the trial court erred by denying

his motion to “change the case title and bar the use of pseudonyms” in this

44 We acknowledge the existence of case law, primarily from lower federal courts, that

occasionally applies non-PRA injunctive relief standards. Our Supreme Court has determined that PRA disclosure is regulated by only the PRA injunctive relief standard. Lyft, 190 Wn.2d at 784-85.

65 No. 83700-1-I/66

litigation. According to Sueoka, Washington’s open courts principles, emanating

from article I, section 10 of our state constitution, require that the Does litigate

this matter using their actual names. We disagree.

In seeking to preclude the disclosure of their identities in the requested

records, the Does assert a First Amendment right. Thus, it is federal open courts

jurisprudence, which itself derives from the First Amendment, that here applies.

Such jurisprudence permits litigants to proceed pseudonymously when the injury

litigated against would be incurred as a result of the disclosure of their identities.

Herein, that precise outcome would occur were the Does not permitted to litigate

using pseudonyms.

Accordingly, we conclude that the trial court did not err in ruling that the

Does could proceed in pseudonym in this litigation. For the same reason, we

decline to grant Sueoka’s request to preclude the use of pseudonyms on appeal.

A

In these proceedings, both the trial court and our commissioner have

repeatedly entertained Sueoka’s argument that the Does should not be permitted

to litigate pseudonymously. In each instance, they have rejected that argument.

First, Sueoka objected to the Does’ motion to proceed in pseudonym filed

concurrent with their initial complaint for declaratory and injunctive relief. On

March 9, 2021, Judge Cahan granted the Does’ motion. Prior to so doing, Judge

Cahan considered the factors for redaction set forth in Seattle Times Co. v.

Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982), and made the findings required

therein. Judge Cahan also determined that the Does had complied with the

66 No. 83700-1-I/67

relevant court rules, including General Rule (GR) 15. Three days later, on March

12, 2021, Judge Widlan denied the Does’ complaint for injunctive relief, and the

Does sought discretionary review.

Sueoka then filed a “motion to change the case title and bar the use of

pseudonyms” in this court. He subsequently filed a notice of cross appeal,

challenging Judge Cahan’s order permitting the Does to litigate in pseudonym.

Our commissioner denied Sueoka’s motion to change the case title on April 9,

2021. The commissioner explained that there “appear[ed] to be no dispute that

Judge Cahan evaluated the Ishikawa factors in reaching the March 9, 2021

decision and that no party asked Judge Widlan to revisit [that] order.” The

commissioner further reasoned that the “substance of Sueoka’s motion to

change the case title is inextricably tangled up with the merits of his appeal” and

concluded that “maintaining the case name adopted by the trial court . . . appears

to be necessary to allowing [this court] to reach the merits of this case.”

Following transfer of the appeal from Division One to our Supreme Court,

and that court’s subsequent dismissal of review and remand to the superior

court, Sueoka again filed a “motion to change the case title and bar the use of

pseudonyms.” Sueoka did not therein challenge Judge Cahan’s order granting

the Does’ motion to proceed in pseudonym. Judge Widlan denied Sueoka’s

motion, reasoning that “the purpose of [the Does’] lawsuit is to procure an

injunction to prevent disclosure of their names” and, thus, requiring use of their

names in court filings “would effectively prevent them from seeking any relief.”

67 No. 83700-1-I/68

B

Washington’s open courts jurisprudence derives from article I, section 10

of our state constitution, which requires that “[j]ustice in all cases shall be

administered openly, and without unnecessary delay.” W ASH. CONST. art. I, § 10.

Because “[t]he openness of our courts ‘is of utmost public importance,’”

Washington courts begin “with the presumption of openness when determining

whether a court record may be sealed from the public.” Hundtofte v.

Encarnacion, 181 Wn.2d 1, 7, 330 P.3d 168 (2014) (quoting Dreiling v. Jain, 151

Wn.2d 900, 903, 93 P.3d 861 (2004)). Whether redaction implicates article I,

section 10’s mandate of open access to courts and court documents “depends

on application of the experience and logic test.” State v. S.J.C., 183 Wn.2d 408,

412, 352 P.3d 749 (2015). When article I, section 10 applies, redaction is

permitted only after consideration of the factors set forth in Ishikawa, 97 Wn.2d

30. When our state constitution is not implicated, GR 15 permits the redaction of

names in pleadings if the court “enters written findings that the specific sealing or

redaction is justified by identified compelling privacy or safety concerns that

outweigh the public interest in access to the court record.” GR 15(c)(2).

In a recent opinion, our Supreme Court reversed a decision of this court

wherein we had determined that allowing the plaintiffs to litigate using

pseudonyms did not implicate article I, section 10. John Doe G v. Dep’t of

Corr.,190 Wn.2d 185, 191, 410 P.3d 1156 (2018) (citing John Doe G v. Dep’t of

Corr., 197 Wn. App. 609, 627-28, 391 P.3d 496 (2017)). The Supreme Court

therein addressed a privacy right arising from a state statute. The questions

68 No. 83700-1-I/69

presented were (1) whether special sex offender sentencing alternative

evaluations are exempt from disclosure pursuant to statutory exemptions, and (2)

whether “pseudonymous litigation was proper in [that] action.” Doe G, 190

Wn.2d at 189.

On appeal before this court, we had looked to federal open courts

jurisprudence for “guidance,” recognizing the “parallel rights [to those derived

from article I, section 10] under the First Amendment.” Doe G, 197 Wn. App. at

627. We noted federal court holdings that the use of pseudonyms is appropriate

when “‘the injury litigated against would be incurred as a result of the disclosure

of the plaintiff’s identity.’” Doe G, 197 Wn. App. at 627 (quoting Doe v. Frank,

951 F.2d 320, 324 (11th Cir. 1992)). Based, in part, on this reasoning, we held

that “[e]xperience and logic” demonstrated “that allowing [the] plaintiffs to

proceed under pseudonyms [did] not implicate article I, section 10 where the

public’s interest in the plaintiffs’ names is minimal and use of those names would

chill their ability to seek relief.” Doe G, 197 Wn. App. at 628. Thus, we affirmed

the trial court’s ruling permitting the plaintiffs to litigate using pseudonyms,

notwithstanding that the trial court had not applied the Ishikawa factors. Doe G,

197 Wn. App. at 624.

Our Supreme Court reversed our decision, holding that “pseudonymous

litigation was improper . . . because the trial court did not adhere to the

requirements of article I, section 10 . . . and [GR] 15.” Doe G, 190 Wn.2d at 189.

In so holding, the court explained that it had “never used [the] analysis” set forth

in the federal appellate court decisions on which we had relied for guidance. Doe

69 No. 83700-1-I/70

G, 190 Wn.2d at 198. Instead, the court held, Washington courts “rely on GR 15

and Ishikawa.” Doe G, 190 Wn.2d at 198.

C

Citing our Supreme Court’s decision in Doe G, 190 Wn.2d 185, Sueoka

contends that Judge Widlan “used the wrong legal standard” in denying his

motion to preclude the Does from litigating pseudonymously.45 However, in so

asserting, Sueoka misperceives the issue as one of Washington law. 46 It is not.

Accordingly, his argument fails.

Unlike in Doe G, in this case, the Does assert that disclosure of their

identities would impinge a federal constitutional First Amendment right.

Preventing the Does from proceeding in pseudonym would preclude their ability

to obtain the relief that they seek in this action. In other words, requiring the

Does to use their actual names in the case caption would undermine their ability

to assert the First Amendment right that they seek to vindicate herein. Such a

result would violate the Supremacy Clause, U.S. CONST. art. VI, cl. 2, which

mandates that we must not “give effect to state laws that conflict with federal

laws.” Armstrong, 575 U.S. at 324. When parties who assert that disclosure of

their identities would violate a federal constitutional right seek to litigate

45 Br. of Resp’t/Cross Appellant at 69-71. 46 We note that, if Washington law did apply here, Sueoka’s contention would

nevertheless be unavailing. As discussed above, Judge Cahan did apply GR 15 and the Ishikawa factors in ruling that the Does could proceed in pseudonym. Sueoka does not challenge Judge Cahan’s findings, which are, therefore, verities on appeal. In re Welfare of A.W., 182 Wn.2d 689, 711, 344 P.3d 1186 (2015); see also Doe AA v. King County, 15 Wn. App. 2d 710, 717, 476 P.3d 1055 (2020) (accepting as true the trial court’s Ishikawa findings that were unchallenged on appeal). Following Sueoka’s subsequent motion seeking, once again, to preclude the Does from litigating in pseudonym, Judge Widlan simply declined to revisit Judge Cahan’s earlier ruling.

70 No. 83700-1-I/71

pseudonymously, it is federal open courts jurisprudence, arising from the First

Amendment itself, that we must apply.

This holding is consistent with our Supreme Court’s decision in Doe G,

190 Wn.2d 185. There, the litigants seeking to use pseudonyms asserted that

disclosure of their identities in the requested records was precluded by statutory

rights arising from statutory exemptions, including an exemption enumerated

within the PRA itself. Doe G, 190 Wn.2d at 189. Thus, our Supreme Court

properly held that Washington’s open courts jurisprudence applied and that we

had erred by importing federal case law into Washington law. Doe G, 190 Wn.2d

at 189, 198.

Here, however, the Supremacy Clause requires that First Amendment

jurisprudence be applied, both as to the constitutional right at issue—whether

disclosure of the Does’ identities in the requested records would violate a

constitutional privacy right—and as to the question of whether the Does may use

pseudonyms in seeking to vindicate that right. Accordingly, because the Does

assert an exemption from disclosure premised on a federal constitutional right,

rather than a statutory exemption, the application of federal open courts

jurisprudence does not conflict with our Supreme Court’s decision in Doe G but

does comport with the requirements of the Supremacy Clause.

Federal courts have made clear that “[p]ublic access [to plaintiffs’ names

in a lawsuit] is more than a customary procedural formality; First Amendment

guarantees are implicated when a court decides to restrict public scrutiny of

judicial proceedings.” Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981); see also

71 No. 83700-1-I/72

Roe II v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 688 (11th Cir. 2001)

(Hill, J., concurrence in part). When federal law applies, “[t]he ultimate test for

permitting a plaintiff to proceed anonymously is whether the plaintiff has a

substantial privacy right which outweighs the ‘customary and constitutionally-

embedded presumption of openness in judicial proceedings.’” Frank, 951 F.2d at

323 (quoting Stegall, 653 F.2d at 186). “A plaintiff should be permitted to

proceed anonymously only in those exceptional cases involving matters of a

highly sensitive and personal nature, real danger of physical harm, or where the

injury litigated against would be incurred as a result of the disclosure of the

plaintiff’s identity.” Frank, 951 F.2d at 324 (emphasis added).

Thus, the First Amendment both confers privacy rights in political speech

and also, in the standard regulating when a party can proceed in pseudonym,

provides that these substantive rights cannot be extinguished merely because a

party seeks to vindicate them. In other words, it provides that concerns about

public access to the courts cannot be applied to the detriment of First

Amendment rights under federal law, such that the vindication of constitutional

rights would be improperly conditioned on disclosure.47 In this action, the “injury

47 In NAACP, 357 U.S. at 459-60, the United States Supreme Court relied on this

principle—that federal law not be applied in a manner that precludes the vindication of individuals’ constitutional rights to privacy—in holding that the plaintiff organization had standing to assert the rights of its members. The Court held that the general principle that parties must assert only those constitutional rights “which are personal to themselves” is “not disrespected where constitutional rights of persons who are not immediately before the Court could not be effectively vindicated except through an appropriate representative before the Court.” NAACP, 357 U.S. at 459. There, the NAACP challenged a court order mandating disclosure of its membership lists to the Alabama Attorney General, asserting that such disclosure would violate its members’ constitutional privacy rights. NAACP, 357 U.S. at 451, 458. The Court held that the “right [was] properly assertable by the [NAACP],” reasoning that “[t]o require that [the constitutional right] be claimed by the [NAACP’s] members themselves would result in nullification of the right at the very moment of its assertion.” NAACP, 357 U.S. at 459. See also Pollard, 283 F. Supp. at 256

72 No. 83700-1-I/73

litigated against” is disclosure of the Does’ identities in the requested records.

Were the Does not permitted to litigate pseudonymously, the very injury they

seek to litigate against would be incurred. Pursuant to federal open courts

jurisprudence, in this circumstance, “the almost universal practice of disclosure

must give way . . . to the privacy interests at stake.” Stegall, 653 F.2d at 186.

In summary, the Supremacy Clause prohibits the application of state open

courts jurisprudence to a pending First Amendment claim when such application

would cause the injury litigated against to be incurred, as federal open courts

principles, arising as they do from the First Amendment itself, would not mandate

the disclosure of the parties’ names in that circumstance. If the Does ultimately

prevail, they would be entitled to full protection of their First Amendment rights

against the government—here, protection against disclosure of their identities

within the requested records. State constitutional open courts provisions cannot

be applied in contravention of First Amendment jurisprudence in a manner that

frustrates protection of the citizen’s federal constitutional rights.

Accordingly, we hold that the Does must be permitted to use pseudonyms

in this action. The trial court did not err by so ruling. We additionally deny

Sueoka’s request that we change the case title in this appeal to require it to

include the Does’ actual names.

(recognizing “recent Supreme Court decisions establish[ing] that an organization made up of private individuals has standing to protect those individuals from unwarranted invasions of government of their rights of association and privacy guaranteed by the First and Fourteenth Amendments”). Similarly, here, the Does would be precluded from vindicating their constitutional rights were they unable to litigate pseudonymously. First Amendment open courts jurisprudence prohibits disclosure in such circumstances. Frank, 951 F.2d at 324.

73 No. 83700-1-I/74

D

The Does seek herein to vindicate rights enshrined in the federal

constitution. Thus, applying the open courts principles arising from article I,

section 10 of our state constitution to determine whether the Does may be

permitted to litigate in pseudonym would contravene the Supremacy Clause’s

mandate of state law supersession. Accordingly, as discussed above, we must

apply federal law to this question. We nevertheless note that application of

Washington open courts law would dictate the same resolution of this issue.

Again, this is due to the Supremacy Clause’s mandate that we not give

effect to state laws that conflict with federal laws. Precluding the Does from

litigating in pseudonym pursuant to article I, section 10 would itself be a state

action that would compel the disclosure of the Does’ individual political beliefs

and associations. Indeed, application by Washington courts of our state

constitution is itself a state action. Thus, only by demonstrating that the

disclosure of the Does’ identities “‘furthers a compelling interest and is narrowly

tailored to achieve that interest,’” Citizens United, 558 U.S. at 340 (quoting Fed.

Election Comm’n, 551 U.S. at 464), could a Washington court require such

disclosure when a party seeking to litigate in pseudonym asserts a federal First

Amendment claim. Washington courts, too, are subject to the Supremacy

Clause’s mandate.

Here, as we have discussed, there is no compelling state interest in the

disclosure of the Does’ identities in the requested records. Similarly, there is no

compelling state interest in requiring that the Does litigate using their actual

74 No. 83700-1-I/75

names. Given the profusion of exceptions to the disclosure mandate, this

conclusion is inescapable. Our state law currently includes 632 legislatively

created exceptions to the PRA’s disclosure mandate. See Appendix A. This

proliferation of exceptions undoubtedly demonstrates the absence of a

compelling state interest in the disclosure of the Does’ identities here.

Moreover, neither our legislature nor our Supreme Court, in permitting

broad categories of persons to retain their anonymity in court records, has

engaged in the particularized analysis that would be required if the disclosure of

those persons’ identities implicated a compelling state interest. For instance, our

legislature has determined that individuals are automatically entitled to anonymity

in certain court records, including records regarding adoptions, RCW 26.33.330;

confidential name changes, RCW 4.24.130(5); child victims of sexual assault,

RCW 10.52.100; juvenile nonoffender records, such as juvenile dependencies,

parental terminations, and truancy, at risk youth, and child in need of services

cases, RCW 13.50.100; juvenile offender records, RCW 13.50.050; mental

illness commitments, RCW 71.05.620; and mental illness commitments of

minors, RCW 71.34.335.

Similarly, by both court rule and order, Washington courts have deemed

certain categories of persons to be exempt from the general mandate that court

records include the actual names of the litigants. Washington court rule General

Rule 15, consistent with article I, section 10 of our state constitution, “preserves a

long-established principle that the complete names of parties are to be listed with

the actions to which they are parties,” subject to “carefully delimited” exceptions.

75 No. 83700-1-I/76

Hundtofte, 181 Wn.2d at 16 (Madsen, C.J., concurring). These exceptions,

however, are not based on a particularized analysis of each case. Rather, like

the legislative enactments discussed above, they exempt litigants in broad

categories of cases from the disclosure mandate. For instance, in adopting Rule

of Appellate Procedure (RAP) 3.4, our Supreme Court has determined that all

juvenile offenders are entitled to anonymity in court records.48 By order, the

Washington Court of Appeals has similarly required that case titles in certain

appeals—including those regarding adoption, civil commitment, dependency,

termination of parental rights, truancy, at risk youth, child in need of services, and

juvenile offender—use the parties’ initials rather than their full names. Gen. Ord.

for the Ct. of Appeals, In re Changes to Case Title (Wash. Ct. App. Aug. 22,

2018) (effective Sept. 1, 2018).

Thus, neither our state legislature nor Washington courts, in adopting

exceptions to our state open courts law, have deemed it necessary to conduct a

particularized case-by-case analysis prior to permitting the redaction of parties’

names in court records. Instead, whether by legislative enactment, court rule, or

court order, our state has exempted broad categories of persons from the

general disclosure requirement. Certainly, such broad exemptions do not

indicate the narrow tailoring that would be necessary were the state interest in

the disclosure of litigants’ actual names compelling. Thus, by exempting broad

48 RAP 3.4 provides:

In a juvenile offender case, the parties shall caption the case using the juvenile’s initials. The parties shall refer to the juvenile by his or her initials throughout all briefing and pleadings filed in the appellate court, and shall refer to any related individuals in such a way as to not disclose the juvenile’s identity. However, the trial court record need not be redacted to eliminate references to the juvenile’s identity.

76 No. 83700-1-I/77

swaths of persons from article I, section 10’s open courts mandate, both the

Washington legislature and Washington courts have impliedly indicated that the

state interest in disclosure of litigants’ actual names is not a compelling one.

The Supremacy Clause prohibits the application of state open courts

jurisprudence when, as here, the right asserted is established by the federal First

Amendment. Nevertheless, even were we to apply Washington law to the

question of whether the Does may litigate in pseudonym, we would reach the

same conclusion—that not only “may” they so litigate, but that the federal

constitution demands they be permitted to do so. Such a determination by a

Washington court is, itself, state action. The broad exemptions to the open

courts mandate, both enacted by our legislature and adopted by our courts,

demonstrate that the state interest in the disclosure of individuals’ actual names

in court records is not a compelling one. Absent such an interest, and given the

Does’ First Amendment right to anonymity in political belief and association, we

cannot require the Does to litigate using their actual names here.

V

A

All members of the panel have taken an oath to “‘support the Constitution

of the United States.’” RCW 2.06.085. Each panel member views the methods

of analyses employed herein and the decisions reached as being in accord with

this oath.

Nevertheless, we are aware of the cultural and political tenor of our times.

This includes an awareness that many Americans despair that judicial decisions

77 No. 83700-1-I/78

have become result-oriented to achieve political ends. To disabuse those so

inclined from defaulting to such a judgment concerning this opinion, and to

assure the general public that its appellate court exists in a reality-based

environment, we choose to acknowledge several of the pertinent facts that

underlie the dispute at issue.

The 2020 Presidential Election

1. Joseph R. Biden, Jr. won the 2020 presidential election, receiving

81,283,501 popular votes.49 Donald J. Trump lost the 2020 presidential election,

receiving 74,223,975 popular votes.50 Biden received 7,059,526 more votes than

did Trump.

2. Biden’s popular vote total was the largest ever received by a candidate

for President of the United States.51

3. Biden received 51.3 percent of the popular vote.52 This was the

highest percentage of the popular vote attained by a challenger to a sitting

president since 1932, when Franklin Roosevelt defeated Herbert Hoover.53

49 U.S. FED. ELECTION COMM’N, FEDERAL ELECTIONS 2020: ELECTION RESULTS FOR THE U.S.

PRESIDENT, THE U.S. SENATE, AND THE U.S. HOUSE OF REPRESENTATIVES 5 (Oct. 2022), at 5, https://www.fec.gov/resources/cms- content/documents/federalelections2020.pdf [https://perma.cc/5XDB-2XJA] 50 FEDERAL ELECTIONS 2020, supra, at 5. 51 Domenico Montanaro, President-Elect Joe Biden Hits 80 Million Votes in Year Of

Record Turnout, NAT’L PUB. RADIO (Nov. 25, 2020), https://www.npr.org/2020/11/25/937248659/president-elect-biden-hits-80-million-votes-in-year-of- record-turnout [https://perma.cc/4FZS-AWKK]. 52 FEDERAL ELECTIONS 2020, supra, at 5. 53 Presidential Election Margin of Victory, AM. PRESIDENCY PROJECT (Mar. 7, 2020),

https://www.presidency.ucsb.edu/statistics/data/presidential-election-mandates [https://perma.cc/9MJG-RAHE]; Share of Electoral College and Popular Votes from Each Winning Candidate, in All United States Presidential Elections from 1789 to 2020, STATISTA (Dec. 2020), https://www.statista.com/statistics/1034688/share-electoral-popular-votes-each-president-since- 1789 [https://perma.cc/B5SE-NLLY].

78 No. 83700-1-I/79

4. Biden earned 306 electoral votes. Trump earned 232.54 In 2016,

Trump earned 306 electoral votes, while Hillary Clinton earned 232.55 Thus,

Biden defeated Trump by the same Electoral College margin as Trump defeated

Clinton.

The Rally on January 6, 2021

1. A “Stop the Steal” rally was held on January 6, 2021 on public property

in the District of Columbia. Various permits were sought and obtained,

authorizing use of the public property.56

2. The theme of the rally was that the election had been “stolen” from

Donald Trump. Thus, Trump and rally organizers urged, Congress should not

finalize Biden’s victory by certifying the Electoral College results (as the law

required).57

3. Trump, the sitting president, spoke at the rally.58

The Insurrection at the Capitol

1. As the rally ended, a civil disturbance began at the Capitol. Hundreds

of persons illegally broke through security lines and eventually into the Capitol

54 FEDERAL ELECTIONS 2020, supra, at 7. 55 2016 Presidential Election Results, N.Y. TIMES (Aug. 19, 2017, 9:00 AM),

www.nytimes.com/elections/2016/results/president. 56 See note 13, supra. 57 H.R. REP. NO. 117-663, at 231-33, 499-502 (2022),

https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf [https://perma.cc/UH8B-ZQ7D]. 58 H.R. REP. NO. 117-663, at 231-33.

79 No. 83700-1-I/80

Building.59

2. Both the House of Representatives and the Senate were forced to

adjourn and flee to safety.60

3. In the riotous melee that ensued over 140 law enforcement officers

were injured.61 According to a U.S. Senate report, seven deaths were attributed

to the violence that took place.62

4. The common goal of the rioters was to keep Congress from performing

its lawful function—certification of Biden’s presidential election victory. 63 Some

rioters, including those who chanted “Hang Mike Pence,” had other goals, such

as the killing or kidnapping of members of Congress.64

5. For the first time since the War of 1812, the United States government

lost physical control of the Capitol Building to a group of attackers.65

59 Audrey Kurth Cronin, The Capitol Has Been Breached Before: This Time It Was

Different, AM. UNIV. SCH. OF INT’L SERV. (Feb. 9, 2021), https://www.american.edu/sis/centers/security-technology/the-capitol-has-been-attacked-before- this-time-it-was-different.cfm [https://perma.cc/Y4NJ-7GE3]. See discussion H.R. REP. NO. 117- 663, at 637-88. 60 H.R. REP. NO. 117-663, at 664-66. 61 COMM. ON HOMELAND SEC. & GOVERNMENTAL AFFAIRS & COMM. ON RULES & ADMIN., U.S.

SENATE, EXAMINING THE U.S. CAPITOL ATTACK: A REVIEW OF THE SECURITY, PLANNING, AND RESPONSE FAILURES ON JANUARY 6, at 33 (June 2021), https://www.rules.senate.gov/imo/media/doc/Jan%206%20HSGAC%20Rules%20Report.pdf [https://perma.cc/DL5Q-5XT3]. 62 EXAMINING THE U.S. CAPITOL ATTACK, supra, at 1. 63 EXAMINING THE U.S. CAPITOL ATTACK, supra, at 1. 64 H.R. REP. NO. 117-663, at 37-39; Cronin, supra. 65 Cronin, supra; Amanda Holpuch, US Capitol’s Last Breach Was More Than 200 Years Ago, GUARDIAN (Jan. 6, 2021, 7:59 PM), https://www.theguardian.com/us-news/2021/jan/06/us- capitol-building-washington-history-breach [https://perma.cc/RU25-E3LP]; Amy Sherman, A History of Breaches and Violence at the US Capitol, POLITIFACT (Jan. 6, 2021), https://www.politifact.com/article/2021/jan/07/history-breaches-and-violence-us-capitol/ [https://perma.cc/8A7C-5L2H].

80 No. 83700-1-I/81

6. Over 1,000 persons have been charged with crimes premised on

actions occurring at the Capitol on January 6, 2021.66 Over 630 have, to date,

pleaded guilty or been found guilty after trial.67

7. Many of the insurrectionists belonged to groups espousing white

supremacist views. Others of the rioters, while not group members, were shown

to possess such views.68

Given all of these facts, it is easy to understand the concerns motivating

the City and the requesters. Nevertheless, our duty to the United States

Constitution, and the Constitution’s embrace and protection of a right to

anonymity in political activity, lead us to the decisions we announce today.

B

The trial court’s denial of the Does’ motion for a preliminary injunction is

reversed and remanded.

The trial court’s issuance of a temporary restraining order is affirmed.

The trial court’s order denying Sueoka’s motion to preclude the Does’ use

of pseudonyms is affirmed.

66 The Jan. 6 Attack: The Cases Behind the Biggest Criminal Investigation in U.S.

History, NAT’L PUB. RADIO (May 12, 2023, 5:25 PM), https://www.npr.org/2021/02/09/965472049/the-capitol-siege-the-arrested-and-their-stories [https://perma.cc/S38K-B8DK]. 67 The Jan. 6 Attack: The Cases Behind the Biggest Criminal Investigation in U.S.

History, supra. 68 See discussion H.R. REP. NO. 117-663, at 499-576; Sabrina Tavernise & Matthew

Rosenberg, These Are the Rioters Who Stormed the Nation’s Capitol, N.Y. TIMES (May 12, 2021), https://www.nytimes.com/2021/01/07/us/names-of-rioters-capitol.html; Deena Zaru, The Symbols of Hate and Far-Right Extremism on Display in Pro-Trump Capitol Siege, ABC NEWS (Jan. 14, 2021, 2:01 AM), https://www.abcnewsgo.com/us/symbols-hate-extremism-display-pro-trump- captiol-siege/story?id=75177671 [https://perma.cc/3T4R-2JRL]; Matthew Rosenberg & Ainara Tiefenthäler, Decoding the Far-Right Symbols at the Capitol Riot, N.Y. TIMES (Jan. 13, 2021), https://www.nytimes.com/2021/01/13/video/extremist-signs-symbols-capitol-riot.html.

81 No. 83700-1-I/82

Sueoka’s motion to change the case title is denied.

Affirmed in part, reversed in part, and remanded.

WE CONCUR:

82 APPENDIX A Public Records Exemptions Accountability Committee - Sunshine Committee Schedule of Review - Updated March 2022 "Legislation" = bills with Committee recommendations + other bills related to Committee recommendations (+ some related bills where the Legislature independently introduced legislation) Date * Materials Proposed Legislation & Category RCW (thru 2012) Description Recommendation Enacted Presented Related Bills Information on individual American ginseng growers SB 5295 (Ch. 128, 2010 1 Agriculture 42.56.380(6) 1996 Oct. 2007 June 2008 or dealers Laws) Personal Information - 42.56.360(1)(f); [now Information relating to infant mortality pursuant to SB 5295 (Ch. 128, 2010 2 1992 Oct. 2007 Mar. 2008 Research Data/Health (3)(a)] RCW 70.05.170 Laws) Care Personal Medical records collected by a local department of SB 5295 (Ch. 128, 2010 Information - 3 70.05.170 health in the course of conducting a child mortality 1992 Oct. 2007 Mar. 2008 Laws); SB 5049 (2011, Research Data/Health review 2012) Care Definition of "public records" for the senate and the Legislative 42.56.010(2); [now house are limited to definition of legislative records in 4 1995 Oct. 2007 Aug. 2009 Records (3)] RCW 40.14.100 and budget, personnel, travel records and certain reports. [Definition] SB 5294 (2009); SB 5049 Personal Information - Oct. 2007; March 2008; (2011, 2012); HB 1298 Applications for public employment, including names, Mar. 2008; September 2008; 5 Public 42.56.250(2) 1987 Sept. 2008; Feb. 2017; (2013); SB 5169 (2013); resumes May 2017 Employment May 2017 HB 1537 (Ch. 229, 2019 Laws); SB 5246 (2019) 42.56.380(1); Business records the department of agriculture Nov. 2007 6 Agriculture 1992 June 2008 15.86.110 obtains regarding organic food products Jan. 2008 42.56.380(2); Information regarding business operations contained Nov. 2007 7 Agriculture 1987 June 2008 15.54.362 in reports on commercial fertilizer Jan. 2008 Production or sales records required to determine payments to various agricultural commodity boards Nov. 2007 8 Agriculture 42.56.380(3) 1996 June 2008 and commissions (Relates to exemptions in 10 Jan. 2008 commission statutes)

Consignment information contained on phytosanitary Nov. 2007 9 Agriculture 42.56.380(4) 1996 June 2008 certificates issued by the department of agriculture Jan. 2008

Financial and commercial information and records held by the department of agriculture for potential Nov. 2007 10 Agriculture 42.56.380(5) establishment of a commodity board or commission 1996 June 2008; November 2012 Jan. 2008 regarding domestic or export marketing activities or individual production information Identifiable information collected by department of agriculture regarding packers and shippers of fruits Nov. 2007 11 Agriculture 42.56.380(7) 1996 June 2008 and vegetables for purposes of inspections and Jan. 2008 certification Financial statements provided to the department of Nov. 2007 12 Agriculture 42.56.380(8) agriculture for purposes of obtaining public livestock 2003 June 2008 Jan. 2008 market license (Voluntary) National animal identification systems - Nov. 2007 13 Agriculture 42.56.380(9) 2006 June 2008 herd inventory mgmt., animal disease Jan. 2008

1 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Nov. 2007 14 Agriculture 42.56.380(10);16.36 Animal disease reporting 2006 June 2008 Jan. 2008 Jan. 2008; *See also June 2008; November 2012; Farm plans that are voluntary and developed with May 2016, Aug. 2016 & 15 Agriculture 42.56.270(17) conservation district assistance 2006 Oct. 2016 - 42.56.270 & *See also Oct. 2016 - 42.56.270 & 2017: HB 1160/SB 5418 trade secrets trade secrets Livestock nutrient management information: Certain information obtained by state and local agencies from dairies, animal feeding operations not required to Nov. 2007 16 Agriculture 42.56.610 2005 (c510s5) June 2008 ; apply for a national pollutant discharge elimination Jan. 2008 system permit disclosable only in ranges that provide meaningful information to public Nov. 2007 17 Agriculture 15.49.370(8) Seeds: operations and production information 1969 June 2008 Jan. 2008 Nov. 2007 18 Agriculture 15.53.9018 Commercial Feed required reports 1975 June 2008 Jan. 2008 Washington Pesticide Control Act: Business Nov. 2007 19 Agriculture 15.58.060(1)(c) information of a proprietary nature regarding pesticide 1971 June 2008 Jan. 2008 formulas Washington Pesticide Control Act: Privileged or Nov. 2007 20 Agriculture 15.58.065(2) confidential commercial or financial information, trade 1971 June 2008 Jan. 2008 secrets re: pesticides Information regarding agricultural marketing 21 Agriculture 15.65.510 agreements (including info from noncompliance 1961 Feb. 2008 June 2008 hearings) Business related information obtained by the department of agriculture regarding entities certified Nov. 2007 22 Agriculture 15.86.110 1992 June 2008 to handle and process organic or transitional food, or Jan. 2008 entities applying for such certification Insect Pests & Plant Diseases (including: trade secrets or commercial or financial information Nov. 2007 23 Agriculture 17.24.061(2) obtained by department of agriculture regarding 1991 June 2008 Jan. 2008 insect pests, noxious weeds, or organisms affecting plant life Financial information provided by applicants for a 24 Agriculture 22.09.040(9) 1987 Feb. 2008 June 2008 warehouse license to the department of agriculture Financial information provided by applicants for a 25 Agriculture 22.09.045(7) 1987 Feb. 2008 June 2008 grain dealer license to the department of agriculture Financial and commercial information obtained by the Nov. 2007 26 Agriculture 43.23.270 department of agriculture for export market 1996 June 2008 Feb. 2008 development projects List of nominees for director of work force training & SB 5295 (Ch. 128 Laws of 27 Personal Information 28C.18.020 1991 Feb. 2008 Sept. 2008 education board [Later eliminated] 2010) Names of candidates for director of interagency SB 5295 (Ch. 128 Laws of 28 Personal Information 79A.25.150 1989 Feb. 2008 Sept. 2008 committee for outdoor recreation [Later eliminated] 2010)

2 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills State investment board criminal history record checks 29 Personal Information 43.33A.025(2) 1999 May 2008 June 2008 of finalists for board positions Address, phone numbers, email addresses, SSNs, Personal Information: drivers' license numbers, identicard numbers, payroll May 2008; Feb. 2016; 2017: HB 1160/SB 5418; 30 42.56.250(4) deductions, and emergency contact information of 1987; 2020 May 2016 Employment and Licensing May 2016 HB 1538 (2019) public employees or volunteers held by public 2017: HB 1160/SB 5418. See also HB 1293 (2011); Personal information in files for students in public 1973 SB 5314 (2011), HB 2646 schools, patients or clients of public institutions or (I-276); Re (2): 2011 c Nov. 2008; May 2014; (2011); HB 1203 (Ch. 220, 31 Personal Information 42.56.230(1)&(2) May 2016 (re consent) public health agencies, or welfare programs (1); 173 s 1, 2013 c 220 s 1, Feb. 2016; May 2016 2013 Laws); SB 5198 children in listed programs (2) 2015 c 47 s 1 (2013); SB 5098 (Ch. 173, 2011 Laws); HB 1538 (2019); SB 5246 (2019) SB 5294 (2009); SB 5049 (2011, 2012); HB 1298 Public Utilities & Personal information in vanpool, carpool, ride-share (2013); SB 5169 (2013); 32 42.56.330(3) 1997 May 2008 Nov. 2008; November 2012 Transportation programs HB 1980 (2015); SB 6020 (2015) HB 1554 (2015) (re (2)) Personal information of current or former participants Public Utilities & 33 42.56.330(4) or applicants in transit services operated for those 1999 May 2008 Oct. 2008 Transportation with disabilities or elderly persons 41.04.364 (repealed) - 41.04.362 - also see Personally identifiable information in state employee SB 5295 (Ch. 128, 2010 34 Personal Information 1987; 2010 c. 128 s 3 May 2008 (2008 law) July 2008 (2008 law) 42.56.360(1)(j) wellness program Laws) (same) SB 5294 (2009); SB 5295 (Ch. 129, 2010 Laws); SB 5049 (2011); SB 2552 Public Utilities & Personal information of persons who use transit 35 42.56.330(5) 1999; 2012 May 2008 Oct. 2008 (Ch. 68, 2012 Laws); HB Transportation passes and other fare payment media 1298 (2013); SB 5169 (2013); HB 1980 (2015); SB 6020 (2015) Agency records relevant to a controversy but which Misc. Government would not be available to another party under the 1973 36 42.56.290 June 2008 Nov. 2008 SB 5294 (2009) Functions rules of pretrial discovery for causes pending in the (I-276) superior courts Information that identifies a person who, while an agency employee: (a) Seeks advice, under an informal process established by the employing agency, in order to ascertain his or her rights in 37 Personal Information 42.56.250(6) 1992 Sept. 2008 Oct. 2008 HB 1538 (2019) connection with a possible unfair practice under chapter 49.60 RCW against the person; and (b) requests his or her identity or any identifying information not be disclosed

3 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Investigative records compiled by an employing SB 5295 (Ch. 128, 2010 agency conducting a current investigation of a Laws) ; see also HB 2761 Sept. 2008; Feb. 2016; 38 Personal Information 42.56.250(5) possible unfair practice under chapter 49.60 RCW or 1994 Oct. 2008; May 2016 (2012) (employer May 2016 of a possible violation of other federal, state, or local investigations); laws prohibiting discrimination in employment. 2017: HB 1160/SB 5418 Employee salary and benefit information collected SB 5295 (Ch. 128, 2010 39 Personal Information 42.56.250(8) from private employers for salary survey information 1999 Sept. 2008 Oct. 2008 Laws) for marine employees Nov. 2008; Jan. 2012; Personal information in files on employees, March 2012; Feb. 2014; 42.56.230(3) 2017: HB 1160/SB 5418 40 Personal Information appointees, or elected officials if disclosure would 1973 (I-276) Aug. 2014; Oct. 2014; Feb. Nov. 2012; May 2016 (re consent) (formerly (2)) 2015; May 2016 (re (re consent) violate their right to privacy consent) SB 5049 (2011); HB 1297 Background information regarding a court appointed (2013); SB 5170 (2013) 41 Court Proceedings 13.34.100 1993 Oct. 2008 May-10 guardian ad litem. HB 1298 (2013), HB 1980 (2015); SB 6020 (2015) Personally identifying information of persons who use Public Utilities & 42 42.56.330(7) transponders and other technology to facilitate 2005 Mar. 2009 May 2009 Transportation payment of tolls Public Utilities & Personally identifying information on an ID card that 43 42.56.330(8) 2008 Mar. 2009 May 2009 Transportation contains a chip to facilitate border crossing. Public Utilities & Residential addresses and phone numbers in public HB 2114 (2014); SB 6007 44 42.56.330(2) 1987; 2014 c 33 s 1 Mar. 2009; Nov. 2013 Oct. 2009; Nov. 2013 Transportation utility records (Ch. 33, 2014 Laws) Information obtained by governmental agencies and Public Utilities & collected by the use of a motor carrier intelligent 45 42.56.330(6) 1999 Mar. 2009 May 2009 Transportation transportation system or comparable information equipment Public Utilities & Records of any person belonging to a public utility 46 42.56.335 2007 Mar. 2009 May 2009 Transportation district or municipality owned electrical utility Public Utilities & Valuable commercial information, trade secrets, etc. 47 42.56.330(1) 1987 Mar. 2009 Mar. 2009 Transportation supplied to the utilities and transportation commission Utility records filed with utilities and transportation Public Utilities & 48 80.04.095 commission containing valuable commercial 1987 Mar. 2009 Oct. 2009 Transportation information Information obtained and exempted by the health care authority that is transferred to facilitate 49 Insurance & Financial Inst. 42.56.400(2) 2003 May 2009; May 2010 May 2010 development, acquisition, or implementation of state purchased health care Names of individuals in life insurance policy 50 Insurance & Financial Inst. 42.56.400(3) 1995 May 2009; May 2010 May 2010 settlements Insurance viatical settlement broker records which 51 Insurance & Financial Inst. 48.102.030 may be required and examined by the insurance 1995 May 2009; May 2010 May 2010 commissioner [later repealed]

4 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills 52 Insurance & Financial Inst. 42.56.400(4) Insurance antifraud plans 1995 May 2009; May 2010 May 2010 Insurance company antifraud plans submitted to the 53 Insurance & Financial Inst. 48.30A.060 1995 May 2009; May 2010 May 2010 insurance commissioner Insurers' reports on material acquisitions and 54 Insurance & Financial Inst. 42.56.400(5) disposition of assets, etc. filed with the insurance 1995 May 2009; May 2010 May 2010 commission Information provided to the insurance commissioner 55 Insurance & Financial Inst. 42.56.400(7) 1997 May 2009; May 2010 May 2010 regarding service contract providers Monthly financial reports made by service contract 56 Insurance & Financial Inst. 48.110.040(3) 2005 May 2009; May 2010 May 2010 providers to the insurance commissioner Information obtained by the insurance commissioner 57 Insurance & Financial Inst. 42.56.400(8) 2001 May 2009; May 2010 May 2010 relating to market conduct examinations Documents obtained by the insurance commissioner SB 5049 (2012); HB 1298 58 Insurance & Financial Inst. 42.56.400(12) to perform market conduct examinations. Report is 2007 May 2009; May 2010 May 2010 (2013); SB 5169 (2013) re disclosable under RCW 48.37.060. RCW 48.37.060 Confidential and privileged documents obtained in 59 Insurance & Financial Inst. 42.56.400(13) 2007 May 2009; May 2010 May 2010 market conduct examination Information provided to the insurance commissioner 60 Insurance & Financial Inst. 42.56.400(14) by insurance company employees asserting market 2007 May 2009; May 2010 May 2010 conduct violations Documents related to insurance commissioner's 61 Insurance & Financial Inst. 48.37.080 2007 May 2009; May 2010 May 2010 market conduct examination Proprietary information provided to the insurance 2001; 2015 c 122 ss 13 & 62 Insurance & Financial Inst. 42.56.400(9) commissioner regarding health carrier holding May 2009; May 2010 May 2010 14 companies Data filed with the insurance commissioner that SB 5049 (2012); HB 1299 63 Insurance & Financial Inst. 42.56.400(10) 2001 May 2009; Aug. 2010 reveals identity of claimant, provider, or insurer (2013); SB 5171 (2013) Documents obtained by insurance commissioner 64 Insurance & Financial Inst. 42.56.400(11) 2006 May 2009; Aug. 2010 Aug. 2010 relating to insurance fraud Documents obtained by insurance commissioner 65 Insurance & Financial Inst. 48.135.060 2006 May 2009; Aug. 2010 Aug. 2010 relating to insurance fraud Documents obtained by insurance commissioner 2007 66 Insurance & Financial Inst. 42.56.400(15) May 2009; Aug. 2010 Aug. 2010 regarding misconduct by agent/broker Eff. 1/1/09

Information obtained by insurance commissioner in 67 Insurance & Financial Inst. 48.17.595(6) 2007 May 2009; Aug. 2010 Aug. 2010 investigation of misconduct by agent/broker

Documents that provide background for actuarial 68 Insurance & Financial Inst. 42.56.403 2006 May 2009; Aug. 2010 Aug. 2010 opinion filed with insurance commissioner Formulas, statistics, assumptions, etc. used by insurance companies to create rates; such 69 Insurance & Financial Inst. 48.02.120 1985 May 2009; Aug. 2010 Aug. 2010 information that is submitted to the insurance commissioner Statement of actuarial opinion is a public record. Documents that provide background for statement of 70 Insurance & Financial Inst. 48.05.385(2) 2006 May 2009; Aug. 2010 Aug. 2010 actuarial opinion filed with insurance commissioner are exempt

5 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Examinations and investigations by state insurance 71 Insurance & Financial Inst. 48.03.040(6)(a) 1937 May 2009; Aug 2010 Aug. 2010 commissioner Examinations and investigations by state insurance 72 Insurance & Financial Inst. 48.03.050 1937 May 2009 Oct. 2009 SB 5049 (2011) commissioner Insurance companies risk based capital (RBC) 73 Insurance & Financial Inst. 48.05.465 1995 May 2009; Aug. 2010 Aug. 2010 reports and plans Insurance companies risk based capital (RBC) 74 Insurance & Financial Inst. 48.43.335(1) reports and plans (should not be used to compare 1998 May 2009; Aug. 2010 Aug. 2010 insurance companies and are therefore confidential) Proof of nonresident pharmacy licensure used by 75 Insurance & Financial Inst. 48.20.530 1991 May 2009; Aug. 2010 Aug. 2010 insurance companies to provide drugs to residents Proof of nonresident pharmacy licensure used by 76 Insurance & Financial Inst. 48.21.330 1991 May 2009; Aug. 2010 Aug. 2010 insurance companies to provide drugs to residents Proof of nonresident pharmacy licensure used by 77 Insurance & Financial Inst. 48.44.470 1991 May 2009; Aug. 2010 Aug. 2010 insurance companies to provide drugs to residents Proof of nonresident pharmacy licensure used by 78 Insurance & Financial Inst. 48.46.540 1991 May 2009; Aug. 2010 Aug. 2010 insurance companies to provide drugs to residents Source of consideration (identity of the lender) for 79 Insurance & Financial Inst. 48.31B.015(2)(b) 1993 May 2009; Aug. 2010 Aug. 2010 loan associated with acquiring an insurance company Local government self-insurance liability reserve 80 Insurance & Financial Inst. 48.62.101(2) 1991 May 2009; Aug. 2010 Aug. 2010 funds 81 Placeholder Summary of reasoning for insurance commissioner's 82 Insurance & Financial Inst. 48.94.010(5) 1993 May 2009; Aug. 2010 Aug. 2010 refusal to issue reinsurance intermediary license Records of the interstate insurance product regulation 83 Insurance & Financial Inst. 48.130.070 compact involving privacy of individuals and insurers' 2005 May 2009; Aug. 2010 Aug. 2010 trade secrets Examination and proprietary records of potential insurers obtained by the director of the Washington SB 5049 (2011, 2012); state pollution liability insurance agency when HB1298 (2013); SB 5169 84 Insurance & Financial Inst. 70.148.060(1) 1989; 2015 c224 s 5 May 2009; Aug. 2010 Aug. 2010-modify soliciting bids to provide reinsurance for owners of (2013); HB 1980 (2015); underground storage tanks SB 6020 (2015)

Business and proprietary information of insurers obtained by the director of the Washington state 85 Insurance & Financial Inst. 70.149.090 1995 May 2009; Aug. 2010 Aug. 2010 pollution liability insurance agency, to provide insurance to owners of heating oil tanks Examination reports and information obtained by the 86 Insurance & Financial Inst. 42.56.400(6) department of financial institutions from banking 1997 Oct. 2010 Sept. 2011 institutions Reports and information from department of financial 87 Insurance & Financial Inst. 21.20.855 1988 Oct. 2010 Sept. 2011 services examinations Information obtained by the director of financial 88 Insurance & Financial Inst. 30.04.075(1) institutions when examining banks and trust 1977 Oct. 2010 Sept. 2011 companies Information obtained during investigations of out of 89 Insurance & Financial Inst. 30.04.230(4)(a) 1983 Oct. 2010 Sept. 2011 state banks

6 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Examination reports and information obtained by the 90 Insurance & Financial Inst. 31.12.565(1) director of financial institutions while examining credit 1984 Oct. 2010 Sept. 2011 unions Information from examinations of mutual savings 91 Insurance & Financial Inst. 32.04.220(1) 1977 Oct. 2010 Sept. 2011 banks Information from examinations of savings and loan 92 Insurance & Financial Inst. 33.04.110(1) 1977 Oct. 2010 Sept. 2011 associations Findings disapproving conversion from mutual 93 Insurance & Financial Inst. 32.32.228(3) 1989 Oct. 2010 Sept. 2011 savings bank to capital stock savings bank Information applicants deem confidential relating to 94 Insurance & Financial Inst. 32.32.275 conversion of mutual savings bank to capital stock 1981 Oct. 2010 Sept. 2011 savings bank 95 Insurance & Financial Inst. 7.88.020 Financial institution compliance review documents 1997 Oct. 2010 Sept. 2011 Information obtained from a financial institution's 96 Insurance & Financial Inst. 9A.82.170 records pursuant to subpoena under the criminal 1984 Oct. 2010 Sept. 2011 profiteering act Reports and information from department of financial 97 Insurance & Financial Inst. 21.30.855 1988 Oct. 2010 Sept. 2011 services examinations 98 Insurance & Financial Inst. 30.04.410(3) Findings related to disapprovals of bank acquisitions 1989 Oct. 2010 Sept. 2011 Name of lender financing the acquisition of a savings 99 Insurance & Financial Inst. 33.24.360(1)(d) 1973 Oct. 2010 Sept. 2011 and loan, if requested by the applicant Personal information on check cashers and sellers 100 Insurance & Financial Inst. 42.56.450 1991; 1995 Oct. 2010 Sept. 2011 licensing applications and small loan endorsements 101 Insurance & Financial Inst. 31.35.070 Reports on examinations of agricultural lenders 1990 Oct. 2010 Sept. 2011 Addresses and phone numbers and trade secrets of 102 Insurance & Financial Inst. 31.45.030(3) 1991 Oct. 2010 Sept. 2011 applicants of a check casher or seller license Addresses, phone numbers and trade secrets of 103 Insurance & Financial Inst. 31.45.077(2) applicants for a small loan endorsement to a check 1995 Oct. 2010 Sept. 2011 cashers or sellers license Trade secrets supplied by licensed check cashers 104 Insurance & Financial Inst. 31.45.090 and sellers as part of the annual report to director of 2003 Oct. 2010 Sept. 2011 financial institutions Information in employer's records obtained by labor & 105 L&I-Injured workers 51.16.070(2) 1957 Oct. 2010 Aug.2011 industries under industrial insurance Information and records of injured workers contained 106 L&I-Injured workers 51.28.070 1957 Oct. 2010 Aug.2011 in industrial insurance claim files Information (including patients' confidential 107 L&I-Injured workers 51.36.110(1) information) obtained in audits of health care 1994 Oct. 2010 Aug. 2011 providers under industrial insurance SB 5049 (2011); HB 1298 Credit card numbers, debit card numbers, electronic 42.56.230(5) (2013); SB 5169 (2013); 108 Personal Information check numbers, and other financial information, Aug. 2010 Aug.2010; November 2012 (formerly (3)) HB 1980 (2015); HB 1980 except when disclosure is required by other law (2015) Certain taxpayer information if it would violate 109 Personal Information 42.56.230(4) 1973 Feb., May, Aug. 2016 May 2016 (re consent) taxpayers right of privacy

7 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Personal and financial information related to a small 110 Personal Information 42.56.230(5) loan or any system of authorizing a small loan in 2009 May 2016 (re consent) May 2016 (re consent) section 6 of this act (RCW 31.45.---) Personal information required to apply for a driver’s 111 Personal Information 42.56.230(6) 2008 May 2016 (re consent) May 2016 (re consent) license or identicard Name of employee of company seeking industrial 112 L&I-Injured workers 49.17.080(1) 1973 Aug. 2011 Aug. 2011 safety & health act Trade secrets reported to labor & industries under 113 L&I-Injured workers 49.17.200 1973 Aug. 2011 Aug. 2011 Washington industrial safety & health act Identification of employer or employee in labor & 114 L&I-Injured workers 49.17.210 1973 Aug. 2011 Aug. 2011 industries studies Info obtained by labor & industries from employer- 115 L&I-Injured workers 49.17.250(3) requested consultation re. industrial safety & health 1991 Aug. 2011 Aug. 2011 act Labor & industries investigative reports on industrial 116 L&I-Injured workers 49.17.260 1973 Aug. 2011 Aug. 2011 catastrophes Financial or valuable trade info from health care 117 L&I-Injured workers 51.36.120 1989 Aug. 2011 Aug. 2011 providers Board of industrial insurance records pertaining to 118 L&I-Injured workers 42.56.400(1) Aug. 2011 Aug. 2011 appeals of crime victims’ compensation claims Commercial fishing catch data provided to the May 2017; Aug. 2017; 119 Fish & Wildlife 42.56.430 (1) department of fish and wildlife that would result in Oct. 2017; Feb. 2018 unfair competitive disadvantage Sensitive wildlife data obtained by the department of May 2017; Aug. 2017; 120 Fish & Wildlife 42.56.430 (2) fish and wildlife Oct. 2017; Feb. 2018 Personally identifying information of persons who May 2017; Aug. 2017; 121 Fish & Wildlife 42.56.430 (3) acquire recreational or commercial licenses Oct. 2017; Feb. 2018 Information subject to confidentiality requirements of May 2017; Aug. 2017; 122 Fish & Wildlife 42.56.430(4) Magnuson-Stevens fishery conservation and 2008 c 252 s 1 Oct. 2017; Feb. 2018 management reauthorization act of 2006 Test questions, scoring keys, and other exam May 2021; Aug. 2021; 123 Employment and Licensing 42.56.250(1) information used on licenses, employment or 1973 Oct. 2021 academics HB 2764 (2013); HB 2663 Records of LCB showing individual purchases of 124 Personal Information 66.16.090 1933 Jun. 2013 Jun. 2013 (Ch. 182, 2016 Laws) - liquor-confidential Repealed Personally identifying information collected by law Investigative, law enforcement agencies pursuant to local security 125 enforcement and crime 42.56.240(9) 2012 c 288 s 1 alarm system programs and vacation crime watch victims programs Identity of state employee or officer who files a Investigative, law complaint with an ethics board under RCW 42.52.420 126 enforcement and crime 42.56.240(11) 2013 c 190 s 7 or reports improper governmental action to the victims auditor or other official Criminal history record checks for investment board 127 Employment and Licensing 42.56.250(7) 2010 finalist candidates

8 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Employee salary and benefit information collected 128 Employment and Licensing 42.56.250(7) from private employers for salary survey information 1999 for maritime employees HB 2447 (2010); See also HB 2259 (criminal justice Photographs, month/year of birth in personnel files of agency/employee info) 129 Employment and Licensing 42.56.250(8) 2010; 2020 public employees; news media has access and HB 1317 (Ch. 257, 2010 Laws) (amending .230); Real estate appraisals for agency acquisition or sale HB 1431 (Ch. 150, 2015 130 Real estate Appraisals 42.56.260 until project or sale abandoned, but no longer than 3 1973; 2015 c 150 s 1 Aug. 2014; Oct. 2014 Oct. 2014 Laws); SB 5395 years in all cases Burglar alarm info - HB Specific intelligence and investigative information Jan. 2012; March 2012; 2896 (2010); HB 1243 Investigative, law completed by investigative, law enforcement, and May 2012; March 2013; (Ch. 88, 2012 Laws); SB 131 enforcement and crime 42.56.240(1) penology agencies, and state agencies that discipline 1973 Oct .2019 June 2013; Feb. 2014; 5244 (2011); SB 5344 victims members of professions, if essential to law Oct. 2014; Oct. 2019 (2011). Traffic stop info - enforcement or a person’s right to privacy* SB 6186 (2009) Identity of witnesses, victims of crime, or persons who Jan. 2012; March 2012; Investigative, law file complaints, if they timely request nondisclosure HB 2764 (2013); see also March 2013; June 2013; 132 enforcement and crime 42.56.240(2) and disclosure would endanger their life, personal HB 2610 (2010), SB 6428 Sept. 2013; May 2014; victims safety, or property—does not apply to PDC (2010) (to amend .230)) August 2014 complaints Records of investigative reports prepared by any law Investigative, law enforcement agency pertaining to sex offenses or Jan. 2012; March 2012; 133 enforcement and crime 42.56.240(3) sexually violent offenses which have been transferred June 2013 victims to WASPC Investigative, law Information in applications for concealed pistol 134 enforcement and crime 42.56.240(4) 1988 May 2011; March 2013 May, 2011 licenses victims May 2011; Feb. 2015; SB 5049 (2012); HB 1299 Investigative, law May 2015; Aug. 2015; Identifying information regarding child victims of (2013); SB 5171 (2013); 135 enforcement and crime 42.56.240(5) 1992 Aug. 2018; Oct. 2018; Sept. 2011; August 2015 sexual assault HB 1980 (2015); SB 6020 victims Feb. 2019; May 2019; (2015) Aug. 2019; Oct. 2019 SB 5049 (2012); HB 1299 Investigative, law (2013); SB 5171 (2013); 136 enforcement and crime 42.56.240(6) Statewide gang database in RCW 43.43.762 2008 May, 2011 Sept. 2011; November 2012 HB 1980 (2015); SB 6020 victims (2015) Investigative, law Data from electronic sales tracking system 137 enforcement and crime 42.56.240(7) 2010 May, 2011 May, 2011 (pseudoephedrine) victims Investigative, law Person's identifying info submitted to sex offender 138 enforcement and crime 42.56.240(8) notification and registration system to receive notice 2010 May, 2011 May, 2011 victims regarding registered sex offenders Information filed with department of licensing or open Personal to department of licensing inspection under 139 Information/proprietary and 82.36.450(3) agreement is personal information under RCW 2007 Sept. 2011 tax information 42.56.230(3) (b) and exempt from public inspection and copying

9 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Information filed with department of licensing or open Personal to department of licensing inspection under 140 Information/proprietary and 82.38.310(3) agreement is personal information under RCW 2007 Sept. 2011 tax information 42.56.230(3) (b) and exempt from public inspection and copying 141 Lists of Individuals 42.56.070(9) Lists of individuals for commercial purposes. 1973 Feb. 2017; May 2017 Information provided to court for preliminary 142 Juries 2.36.072(4) 1993 determination of statutory qualification for jury duty Personal information required to apply for a driver’s Nov. 2013; Dec. 2013; 143 Personal Information 42.56.230 (7)(a) 2008 c 200 s 5 Feb. 2014; May 2016 (re consent) 2017: HB 1160/SB 5418 license or identicard May 2016 (re consent) Persons who decline to register for selective service 144 Personal Information 42.56.230 (7)(b) 2011 c 350 s 2 May 2016 (re consent) May 2016 (re consent) 2017: HB 1160/SB 5418 under RCW 46.20.111 Valuable formulae, designs, drawings and research *May 2016, Aug. 2016 & Financial, Commercial, and obtained by agency within 5 years of request for Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 145 42.56.270(1) 1973 (I-276) 2017: HB 1160/SB 5418 Proprietary Information disclosure if disclosure would produce private gain trade secrets/proprietary secrets/proprietary info and public loss info *May 2016, Aug. 2016 & Financial, Commercial, and Financial information supplied by a bidder on ferry Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 146 42.56.270(2) 1983 2017: HB 1160/SB 5418 Proprietary Information work or highway construction trade secrets/proprietary secrets/proprietary info info *May 2016, Aug. 2016 & Financial, Commercial, and Financial information and records filed by persons Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 147 42.56.270(3) 1986 2017: HB 1160/SB 5418 Proprietary Information pertaining to export services trade secrets/proprietary secrets/proprietary info info *May 2016; Aug. 2016 & Financial, Commercial, and Financial information in economic development loan Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 148 42.56.270(4) 1987 2017: HB 1160/SB 5418 Proprietary Information applications trade secrets/proprietary secrets/proprietary info info *May 2016, Aug. 2016 & Financial, Commercial, and Financial information obtained from business and Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 149 42.56.270(5) 1989 2017: HB 1160/SB 5418 Proprietary Information industrial development corporations trade secrets/proprietary secrets/proprietary info info May 2015; Aug. 2015; *May 2016, Aug. 2016 & Aug. 2015; see also *Oct. 2016 - SB 6170 (Chap. 8, 2016 Financial, Commercial, and Financial information on investment of retirement 150 42.56.270(6) 1989 Oct. 2016 - 42.56.270 & 42.56.270 & trade Laws 1st Sp. Sess.); Proprietary Information moneys and public trust investments trade secrets/proprietary secrets/proprietary info 2017: HB 1160/SB 5418 info *May 2016, Aug. 2016 & Financial, Commercial, and Financial and trade information supplied by and under Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 151 42.56.270(7) 1989 2017: HB 1160/SB 5418 Proprietary Information industrial insurance coverage trade secrets/proprietary secrets/proprietary info info May 2016, Aug. 2016 & Financial information obtained by the clean Financial, Commercial, and Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 152 42.56.270(8) Washington center for services related to marketing 1994 2017: HB 1160/SB 5418 Proprietary Information trade secrets/proprietary secrets/proprietary info recycled products info *May 2016, Aug. 2016 & Financial, Commercial, and Financial and commercial information requested by Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 153 42.56.270(9) 1997 2017: HB 1160/SB 5418 Proprietary Information public stadium authority from leaser trade secrets/proprietary secrets/proprietary info info

10 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills *May 2016, Aug. 2016 & Financial information supplied for application for a Financial, Commercial, and Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 154 42.56.270(10) liquor, gambling, lottery retail or various marijuana 2014 c 192 s 6 2017: HB 1160/SB 5418 Proprietary Information trade secrets/proprietary secrets/proprietary info licenses info Proprietary data, trade secrets, or other information *May 2016, Aug. 2016 & Financial, Commercial, and submitted by any vendor to department of social and Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 155 42.56.270(11) 2017: HB 1160/SB 5418 Proprietary Information health services for purposes of state purchased trade secrets/proprietary secrets/proprietary info health care info *May 2016, Aug. 2016 & Financial or proprietary information supplied to Financial, Commercial, and Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 156 42.56.270(12)(a)(i) DCTED in furtherance of the state’s economic and 1993, 1989 2017: HB 1160/SB 5418 Proprietary Information trade secrets/proprietary secrets/proprietary info community development efforts info *May 2016, Aug. 2016 & Financial or proprietary information provided to the Financial, Commercial, and Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 157 42.56.270(12)(a)(ii) DCTED regarding businesses proposing to locate in 1999 2017: HB 1160/SB 5418 Proprietary Information trade secrets/proprietary secrets/proprietary info the state info May 2016, Aug. 2016 & Financial, commercial, operations, and technical and Financial, Commercial, and Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 158 42.56.270(14) research information obtained by the life sciences 2005 (c424s6)7/25/2006 2017: HB 1160/SB 5418 Proprietary Information trade secrets/proprietary secrets/proprietary info discovery fund authority info *May 2016, Aug. 2016 & Financial and commercial information submitted to or Financial, Commercial, and Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 159 42.56.270(20) obtained by the University of Washington relating to 2009 c 384 s 3 2017: HB 1160/SB 5418 Proprietary Information trade secrets/proprietary secrets/proprietary info investments in private funds info *May 2016, Aug. 2016 & Financial, Commercial, and Market share data submitted by a manufacturer under Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 160 42.56.270(21) 2013 c 305 s 14 2017: HB 1160/SB 5418 Proprietary Information RCW 70.95N.190(4) trade secrets/proprietary secrets/proprietary info info Preliminary drafts, notes, recommendations, and intra- Preliminary records agency memos where opinions are expressed or 161 containing opinions or 42.56.280 1973 (I-276) May 2021; Oct. 2021 policies formulated or recommended, unless cited by policy formulations an agency Information identifying the location of archaeological 162 Archaeological sites 42.56.300(3) 1976; 2014 c 165 s 1 sites 163 Library records 42.56.310 Library records disclosing the identity of a library user 1982 Financial disclosures filed by private vocational 164 Educational Information 42.56.320(1) 1986 schools Financial and commercial information relating to the 165 Educational Information 42.56.320(2) purchase or sale of tuition units Individually identifiable information received by the 166 Educational Information 42.56.320(3) WFTECB for research or evaluation purposes Information on gifts, grants, or bequests to institutions 167 Educational Information 42.56.320(4) 1975 May 2021; Oct. 2021 of higher education (1975) The annual declaration of intent filed by parents for a 168 Educational Information 42.56.320(5) 2009 c 191 s 1 child to receive home-based instruction

11 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Membership lists and lists of owners of interests in 2019: HB 1537 (repealed Timeshare, condominium timeshare projects, condominiums, land Feb. 2017; May 2017; 169 42.56.340 1987 Aug. 2017 exemption) (Ch. 229, 2019 owner lists developments, or common-interest communities, Aug.2017 laws) regulated by the department of licensing SSNs of health care professionals maintained in files 170 Health Professionals 42.56.350(1) 1993 of the department of health Residential address and telephone numbers of health 171 Health Professionals 42.56.350(2) care providers maintained in files of the department of 1993 health Records pertaining to license plates, drivers' licenses Investigative, law or identicards that may reveal undercover work, 172 enforcement and crime 42.56.230(7)(c) 2013 c 336 s 3 confidential public health work, public assistance victims fraud, or child support investigations Criminal justice agency employee/worker residence 173 Employment and Licensing 42.56.240(13) 2015 c 91 s 1 GPS data Information and documents created, collected, and maintained by the health care services quality 174 Health Care 42.56.360(1)(c) 1995 improvement program and medical malpractice prevention program *See also May 2016, Proprietary financial and commercial information Aug. 2016 & Oct. 2016 - 175 Health Care 42.56.360(1)(d) provided to department of health relating to an 1997 42.56.270 & trade antitrust exemption secrets/proprietary info 176 Health Care 42.56.360 (1) (e) Physicians in the impaired physicians program 1987, 1994, 2001 Information relating to infant mortality pursuant to RCW 70.05.170(3) - 1992; Amended 2010 c 177 Health Care former RCW 70.05.170/RCW 42.56.360 - See 184 2008 (2008 law) March 2008 (2008 law) see also 42.56.360(3) 128 s 3 and 185 *See also May 2016, Financial, Commercial, and Aug. 2016 & Oct. 2016 - 178 42.56.270(23) Notice of crude oil transfers 2015 c 274 s 24 Proprietary Information 42.56.270 & trade secrets/proprietary info Complaints filed under the health care professions 179 Health Care 42.56.360(1)(f) 1997 uniform disciplinary act *See also May 2016, Certain information supplied to the liquor and Financial, Commercial, and Aug. 2016 & Oct. 2016 - 180 42.56.270(24) cannabis board per RCW 69.50.325, 9.50.331, 2015 c 178 s 2 Proprietary Information 42.56.270 & trade 69.50.342 and 69.50.345 secrets/proprietary info Information collected by the department of health 181 Health Care 42.56.360(1)(i) 2009 c 1 s 1 under chapter 70.245 RCW. Claims data and information provided to the statewide 182 Health Care 42.56.360(1)(k) all-payer health care claims database that is exempt 2014 c 223 s 17 under RCW 43.373.040 42.56.360(2) and Health care information disclosed to health care 183 Health Care 1991 70.02 provider without patients permission

12 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills *See also May 2016, Certain information and data submitted to or obtained Financial, Commercial, and Aug. 2016 & Oct. 2016 - 184 42.56.270(24) by the liquor and cannabis board re applications for 2016 1st sp.s. c 9 s 3 Proprietary Information 42.56.270 & trade licenses or reports required under RCW 69.50.372 secrets/proprietary info Records in medical marijuana authorization database 185 Health Care; Marijuana 42.56.625 2015 c 70 s 22 I RCW 69.51A.230 Client records of community sexual assault program 186 Domestic Violence 42.56.370 or services for underserved populations [amended 1991; 2012 c 29 s 13 Check Check 2012] Results of animal testing from samples submitted by Aug. 2017; Oct. 2017; 187 Agriculture and Livestock 42.56.380(10) 2012 c 168 s 1(10) Aug. 2018 the animal owner May 2018; Aug. 2018 Records of international livestock importation that are Aug. 2017; Oct. 2017; 188 Agriculture and Livestock 42.56.380(11) 2012 c 168 s 1(11) Aug. 2018 not disclosable by the U.S.D.A. under federal law. May 2018; Aug. 2018 Records related to entry of prohibited agricultural Aug. 2017; Oct. 2017; 189 Agriculture and Livestock 42.56.380(12) products imported into Washington that are not 2012 c 168 s 1(12) Aug. 2018 May 2018; Aug. 2018 disclosable by the U.S.D.A. under federal law Names of individuals residing in emergency or Emergency or Transitional 190 42.56.390 transitional housing furnished to the department of 1997 Housing revenue or a county assessor Documents, materials, or information obtained by the 191 Insurance & Financial Inst. 42.56.400(16) insurance commissioner under RCW 48.102.­051 (1) 2009 c 104 s 37 and 48.102.­140 (3) and (7)(a)(ii)) Documents, materials, or information obtained by the 192 Insurance & Financial Inst. 42.52.400(17) insurance commissioner under RCW 48.31.025 and 2010 c 97 s 3 48.99.025 Documents, material, or information relating to 193 Insurance & Financial Inst. 42.56.400(18) investment policies obtained by the insurance 2011 c 188 s 21 commissioner under RCW 48.13.151 Data from (temporary) study on small group health 194 Insurance & Financial Inst. 42.56.400(19) 2010 c 172 s 2 plan market 42.56.400(20); Information in a filing of usage-based component of 195 Insurance & Financial Inst. 2012 c 222 s 1 48.19.040(5)(b) the rate pursuant to RCW 48.19.040(5)(b) 42.56.400(21); 42.56.400(22); 2012 2nd sp. s. c 3 s 8; Data, information, and documents submitted to or 196 Insurance & Financial Inst. 42.56.400(23); 2013 c 65 s 5; 2013 c 277 obtained by the insurance commissioner 42.56.400(24); s 5; 205 c 17 ss 10 & 11 42.56.400(25) Most records and information supplied to the 197 Employment Security 42.56.410 employment security department 198 Security 42.56.420(1) Records relating to criminal terrorist acts Records containing specific and unique vulnerability 199 Security 42.56.420(2) assessments and emergency and escape response 2009 c 67 s 1 plans – adds civil commitment facilities Comprehensive safe school plans that identify 200 Security 42.56.420(3) specific vulnerabilities

13 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Information regarding infrastructure and security of 201 Security 42.56.420(4) computer and telecommunications networks to the 1999 Feb. 2014 Feb. 2014 extent that they identify specific system vulnerabilities Security sections of transportation security plans for 202 Security 42.56.420(5) fixed guideway systems Information regarding individual claim resolution 203 Personal Information 42.56.230(8) settlement agreements submitted to the board of 2014 c 142 s 1 industrial insurance appeals 204 Veterans’ discharge papers 42.56.440 Veterans’ discharge papers Records and reports produced under state fireworks 205 Fireworks, Explosives 42.56.460 law, chapter 70.77 RCW and the Washington state 1995 explosives act, chapter 70.74 RCW Correctional industries Records pertaining to correctional industries class I 206 42.56.470 2004 workers work programs HB 2764 (2013); HB 2663 Contracts files by railroad companies with the utilities 207 Inactive programs 42.56.480(1) 1984 Jun. 2013 Jun. 2013 (Chap. 282, 2016 Laws) & transportation commission prior to 7/28/91 (repealed) Personal information in international contact data HB 2663 (Chap. 282, 208 Inactive programs 42.56.480(2) 1996 c 253 s 502 Jun. 2013 Jun. 2013 base 2016 Laws) (repealed) Data collected by department of social and health HB 2764 (2013); HB 2663 209 Inactive programs 42.56.480(3) services pertaining to payment systems for licensed 2003 Jun. 2013 Jun. 2013 (Chap. 282, 2016 Laws) boarding homes (repealed) Enumeration data used by office of financial 210 Enumeration Data 42.56.615 management for population estimates per RCW 2014 c 14 s 1 43.43.435 *See also May 2016, Financial, Commercial, and Reports submitted by marijuana research licensees Aug. 2016 & Oct. 2016 - 211 Proprietary Information; 42.56.620 2015 c. 71 s 4 that contain proprietary information 42.56.270 & trade Marijuana secrets/proprietary info Records of mediation communications that are 212 Mediation Communication 42.56.600 2005 c 424 s 16 privileged under the uniform mediation act 213 Code Reviser 1.08.027 Code Reviser drafting services 1951 Feb. 2015 Feb. 2015 Judicial conduct commission investigations and initial 214 Judicial - Investigative 2.64.111 1989 proceedings Hospital review committee records on professional 215 Health Care Professions 4.24.250 1971 Sept. 2020; Oct. 2020 staff *See also May 2016, Financial, Commercial, and Trade secrets and confidential research, development Aug. 2016 & Oct. 2016 - 216 4.24.601 1994 Proprietary Information or commercial information 42.56.270 & trade secrets/proprietary info

*See also May 2016, Trade secrets, confidential research, development or Financial, Commercial, and Aug. 2016 & Oct. 2016 - 217 4.24.611 commercial information concerning products or 1994 Proprietary Information 42.56.270 & trade business methods secrets/proprietary info

14 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Information in centralized risk management claim 218 Claims 4.92.210 1989 tracking system General statements of privileged communications between persons & various professionals, e.g., 219 Privileges 5.60.060 1954 & later dates attorneys or physicians – presumably applies to records (see also # 276) 220 Mediation Communication 5.60.070 Materials used in any court ordered mediation 1991 Feb. 2017; May 2017; 221 Mediation Communication 7.07.050(5) Mediation communications 2005 Feb. 2017; May 2017 222 Mediation Communication 7.07.070 Mediation communications 2005 Feb. 2017; May 2017 The director may examine records of health care 223 Health Care Records 7.68.080(9)(a) provider notwithstanding any statute that makes the 2011 c 346 s 501 records privileged or confidential See also May 2016, Financial, Commercial, and At the request of health care contractor, department Aug. 2016 & Oct. 2016 - 224 7.68.080(10) 2011 c 346 s 501 Proprietary Information must keep financial and trade information confidential 42.56.270 & trade secrets/proprietary info Crime Victims and Records re. Victims of crimes confidential & not open 225 7.68.140 1973 May 2021 Witnesses to inspection Feb. 2015; May 2015; Aug. 2015; Aug. 2018; Crime Victims and Name, address, or photograph of child victim or child 226 7.69.A.030(4) 1985 Oct. 2018; Feb. 2019; Oct. 2019 HB 2485 (2019) Witnesses witness May 2019; Aug. 2019; Oct. 2019 227 Mediation Communication 7.75.050 County or city dispute resolution center records 1984 Financial, Commercial, and 228 7.88.020 & .30 Financial institution compliance review documents 1997 Proprietary Information General statement of fundamental right to 229 Health Care 9.02.100 1991 reproductive privacy – could apply to records Health Care - Concealed Mental health info provided on persons buying pistols 230 9.41.097(2) 1994 Pistols or applying for concealed pistol licenses 231 Concealed Pistols 9.41.129 Concealed pistol license applications 1994 Crime Victims and Name of confidential informants in written report on 232 9.73.230 1989 Witnesses wire tapping 72.09.710 (recod eff 1991 - Recod 2008 c 231 Crime Victims and Names of witnesses notified when drug offenders 233 8/1/09) (See also # s 26, 56 (See dispositions Witnesses released (formerly 9.94A.610) 451) table) 234 Placeholder 72.09.712 (recod eff Names of victims, next of kin, or witnesses who are 1985 - Recod 2008 c 231 Crime Victims and 235 8/1/09) (See also # notified when prisoner escapes, on parole, or s 27, 56 (see dispositions Witnesses 451) released (formerly 9.94A.610) table) 236 Privileges 5.60.060 Alcohol or drug addiction sponsor privilege 2016 st sp. ss. c 24 s 1 *See also May 2016, Records of the interstate commission for adult Aug. 2016 & Oct. 2016 - 237 Offender Information 9.94A.745 offender supervision that would adversely affect 2002 42.56.270 & trade personal privacy rights or proprietary interests secrets/proprietary info

15 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Information regarding victims, survivors of victims, or Crime Victims and 238 9.94A.885 witnesses that are sent clemency hearing notices 1999 Witnesses may not be released to offender Sex offender registration information given to high 239 Offender Information 9A.44.138 school or institution of higher education regarding an 2011 c 337 s 4 employee or student is confidential Criminal Proceedings - 240 10.27.090 Grand jury testimony 1971 Sept. 2020; Oct. 2020 Investigative Sept. 2020; Oct. 2020; Criminal Proceedings - 241 10.27.160 Grand jury reports 1971 Feb. 2021; May 2021; Investigative Aug. 2021; Oct. 2021 Check on any prior Public Utilities & Electric utilities may not disclose private or proprietary 242 19.29A.100 2015 3rd sp. S. c 21 s 1 Committee discussion re Transportation customer information utilities Filing by controlling person of insurer seeking to 243 Insurance & Financial Inst. 48.31B.015(1)(b) divest its controlling interest is confidential until 2015 c 122 s 3 conclusion of transaction Investigative, law 244 enforcement and crime 42.56.240(14) Body worn camera recordings 2016 c 163 s 2 victims Investigative, law Records and info in the statewide sexual assault kit 245 enforcement and crime 42.56.240(14) 2016 c. 173 s 8 tracking system under RCW 43.43. victims Aug. 2018; Oct. 2018; Crime Victims and 246 10.52.100 Identity of child victims of sexual assault 1992 Feb. 2019; May 2019; Witnesses Aug. 2019; Oct. 2019 Information about victims, next of kin, or witnesses Crime Victims and 247 10.77.205 requesting notice of release of convicted sex or 1990 Witnesses violent offenders 248 Offender Information 10.77.210 Records of persons committed for criminal insanity 1973 May 2021 Privacy of criminal records, including criminal history Crime Victims and information on arrests, detention, indictment, 249 10.97 1977 Witnesses information, or other formal criminal charges made after 12/31/77 unless dispositions are included Aug. 2018; Oct. 2018; Crime Victims and Names of victims of sexual assaults who are 18 years HB 1505 (Ch.300, 2019 250 10.97.130 1992 Feb. 2019; May 2019; 2018 Witnesses of age or younger Laws); HB 2484 (2019) Aug. 2019; Oct. 2019 Information given by persons to determine eligibility 251 Judicial - Indigent Defense 10.101.020 1989 for indigent defense Aug. 2018; Oct. 2018; Crime Victims and Sources of confidential information in dispositional 252 13.40.150 1977 Feb. 2019; May 2019; Witnesses - Juvenile hearings on juvenile offenses Aug. 2019 Information about victims, next of kin, or witnesses Aug. 2018; Oct. 2018; Crime Victims and 253 13.40.215 and .217 requesting notice of release of juvenile convicted of 1990 Feb. 2019; May 2019; Witnesses - Juvenile violent sex offense or stalking Aug. 2019

16 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Electronic research copy of juvenile records 2009 c 440 s 1; 2014 c 254 Juvenile Records 13.50.010(12) maintains same level of confidentiality and anonymity 117 s 5 as juvenile records in judicial information system Information in records released to the Washington 2009 c 440 s 1; 2014 c 255 Juvenile Records 13.50.010(13) state office of public defense retain confidential 117 s 5; 2016 c 72 s 109 nature 256 Juvenile Records 13.50.050(3) Records on commission of juvenile crimes 1979; Oct. 2019 Oct. 2019 HB 2484 (2019) Records of juveniles who receive a pardon are 257 Juvenile Records 13.50.010(14)(b) confidential, including the existence or nonexistence 2011 c 338 s 4 of the record Re 42.56.380(6) - Oct. Juvenile justice or care agency records not relating to 258 Juvenile Records 13.50.100(2) 1979 2007; May 2019; Aug. Re. 42.56.380(6) - Jun. 2008 commission of juvenile crimes 2019; Oct. 2019 See # 1 on Schedule of Information on purchases, sales, or production of Review; Aug. 2017; Oct. See # 1 on Schedule of Review See # 1 on Schedule of 259 Agriculture and Livestock 15.19.080 ginseng by individual growers or dealers (see also 1998 2017; May 2018; Aug. Aug. 2018 Review 42.56.380 (6)) 2018 Financial statement info in public livestock market Aug. 2017; Oct. 2017; 260 Agriculture and Livestock 16.65.030(1)(d) 2003 Aug. 2018 license applications May 2018; Aug. 2018 Complaints filed under uniform disciplinary act for 261 Health Care Professions 18.130.095(1)(a) 1997 health professionals Summary and stipulations in complaints against 262 Health Care Professions 18.130.172(1) 1993 health care professionals Voluntary substance abuse records on health care 263 Health Care Professions 18.130.175(4) 1988 professionals Disciplining authority may not disclose information in 18.130.057 ( c 157 s a file that contains confidential or privileged 264 Health Care Professions 2011 c 157 s 1 1(2)(b) information regarding a patient other than the person making the complaint or report Information counselors acquire and 265 Counselors 18.19.180 1987 acknowledgement of practice disclosure statements Identity of individual or name of boarding homes from 266 Boarding Homes 18.20.120 1959 Sept. 2020; Oct. 2020 boarding home licensing records Information and documents created, collected and 267 Health Care Professions 18.20.390 2004 maintained by a quality assurance committee Implication that information in dentistry registration records is only accessible by the registered person Sept. 2020; Oct. 2020; 268 Health Care Professions 18.32.040 1937 unless disclosure would compromise the examination Oct. 2021 process 269 Placeholder Personal information in applications for escrow agent 270 Health Care Professions 18.44.031(2) 1999 licenses Information on maternity homes received by Sept. 2020; Oct. 2020; 271 Health Care Professions 18.46.090 department of health identifying individuals or 1951 Feb. 2021; May 2021; maternity homes Aug. 2021

17 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills May 2021; Aug. 2021; 272 Health Care Professions 18.53.200 Information and records of optometrists 1975 Oct. 2021 Records obtained by department of health regarding 273 Health Care Professions 18.64.420 1991 various insurance companies 274 Health Care Professions 18.71.0195 Contents of physician disciplinary report 1979 275 Health Care Professions 18.71.340 Entry records under impaired physician program 1987 18.83.110 - also Communications between client and 276 Privileges 1955 Sept. 2020; Oct. 2020 5.60.060 (# 219) psychologist—could apply to records Other Professions - Info obtained from contractors on plumbing trainee 277 18.106.320(2) 2002 Plumbers hours Complaints filed under uniform disciplinary act for 278 Health Care Professions 18.130.095(1)(a) 1997 health professionals Summary and stipulations in complaints against 279 Health Care Professions 18.130.172(1) 1993 health care professionals 18.130.095(1)(a) Complaint of unprofessional conduct against health 280 Health Care Professions 1997 (Repealed 2019) profession licensee Voluntary substance abuse records on health care 281 Health Care Professions 18.130.175(4) 1988 professionals Substance abuse treatment records of licensed 282 Health Care Professions 18.130.175(4) health professionals On referral disclosure statement, must include 283 Elderly Adults - Referrals 18.330.050(2)(f) statement that agency will need client authorization to 2011 c 357 s 6 obtain or disclose confidential information Master license service program licensing information Other Professions - 284 19.02.115 is confidential and privileged except as provided in 2011 c 298 s 12 Business Licenses this section *See also May 2016, Financial, Commercial and Aug. 2016 & Oct. 2016 - 285 19.16.245 Collection agency financial statements 1973 Proprietary 42.56.270 & trade secrets/proprietary info Other Professions - Info obtained from electrical contractors on electrical 286 19.28.171 1996 Electrical trainee hours Other Professions - Information obtained from electrical contractor by 287 19.28.171 1996 Electrical department of licenses 288 Security - Electronic Keys 19.34.240 Private keys under the electronic authentication act 1996 289 Security - Electronic Keys 19.34.420 Electronic authentication info 1998 *May 2016, Aug. 2016 & Financial, Commercial and Oct. 2016 - 42.56.270 & *Oct. 2016 - 42.56.270 & trade 290 19.108 Trade Secrets Act 1981 2017: HB 1160/SB 5418 Proprietary Information trade secrets/proprietary secrets/proprietary info info Records released by the court to the state office of 291 Juvenile Records 13.50.010(14) 2015 c 262 s 1 civil legal aid *See also May 2016, Chapter 42.56 RCW relating to supervisory Financial, Commercial and Aug. 2016 & Oct. 2016 - 292 19.146.370(4) information or information subject to subsection (1) of 2009 c 528 s 15 Proprietary - Mortgages 42.56.270 & trade this section is superseded by this section secrets/proprietary info

18 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Other Professions - Money 293 19.230.190 Money transfer licensing information 2003 Transfer Co's. *See also May 2016, Confidential technology information used in Financial, Commercial and Aug. 2016 & Oct. 2016 - 294 19.330.080(5) manufacturing products sold in state is subject to a 2011 c 98 s 8 Proprietary Information 42.56.270 & trade protective order secrets/proprietary info Sept. 2020; Oct. 2020; 295 Investigative Records 21.20.480 Security act investigations 1959 Feb. 2021 *See also May 2016, Financial, Commercial and Some information obtained by the department of Aug. 2016 & Oct. 2016 - 296 Proprietary information - 21.30.170 1986 financial institutions 42.56.270 & trade Investigations secrets/proprietary info 297 Placeholder *See also May 2016, Aug. 2016 & Oct. 2016 - Financial, Commercial and Information in interrogatories of nonprofit 42.56.270 & trade 298 Proprietary information - 24.06.480 miscellaneous and mutual corporations by secretary 1969; Feb 2021 secrets/proprietary info; Nonprofits & Mutuals of state Sept. 2020; Oct. 2020; Feb. 2021; May 2021 Crime Victims and Marriage applications and records about participants 299 26.04.175 1991 Witnesses in address confidentiality program Divorce mediation proceedings—may apply to 300 Mediation Communications 26.09.015 1986 records of the proceedings Superior court may order family court files closed to Sept. 2020; Oct. 2020; 301 Judicial - Court Files 26.12.080 1949 protect privacy Feb. 2021 302 Child Support Records 26.23.120(1) Records concerning persons owing child support 1987 Social security numbers collected by licensing 303 Child Support Records 26.23.150 1998 agencies not to be disclosed Adoption records (except by order of the court under 26.33.330 & .340 & 304 Adoption Records showing of good cause); adoption contact preference 1984; 2013 c 321 s 1 .345 form and parent medical history 27.53.070 Communications on location of archaeological sites 305 Archaeological Records 1975 May 2021; Oct. 2021 (42.56.300) not public records *See also May 2016, Financial, Commercial and Financial disclosures provided to HEC Board by Aug. 2016 & Oct. 2016 - 306 28B.85.020(2) 1996 Proprietary Information private vocational schools 42.56.270 & trade secrets/proprietary info *See also May 2016, Financial, Commercial and Aug. 2016 & Oct. 2016 - 307 28C.10.050(2)(a) Financial disclosures by private vocational schools 1986 Proprietary Information 42.56.270 & trade secrets/proprietary info Oct. 2017; Feb. 2018; Voter and Election 308 29A.08.710 Original voter registration forms or their images 1991 May 2018; Aug. 2018; Information Oct. 2018

19 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Oct. 2017; Feb. 2018; Voter and Election The department of licensing office at which any 309 29A.08.720 1994 May 2018; Aug. 2018; Information particular individual registers to vote Oct. 2018 Oct. 2017; Feb. 2018; Voter and Election 29A.20.191; recod to Minor party and independent candidate nominating 310 2004; 2013 c 11 s 93(4) May 2018; Aug. 2018; Information 29A.56.670 petitions Oct. 2018 Oct. 2017; Feb. 2018; Voter and Election Argument or statement submitted to secretary of state 311 29A.32.100 1999 May 2018; Aug. 2018; Information for voters' pamphlet Oct. 2018 Chapter 42.56 RCW relating to disclosure of *See also May 2016, Financial, Commercial and supervisory information or any information described Aug. 2016 & Oct. 2016 - 312 Proprietary Information - 31.04.274(4) 2009 c 120 s 26 in subsection (1) of this section is superseded by this 42.56.270 & trade Mortgages section secrets/proprietary info Rail fixed guideway system security and emergency 313 Security 35.21.228(4) 1999 preparedness plan Rail fixed guideway system security and emergency 314 Security 35A.21.300(4) 1999 preparedness plan Rail fixed guideway system security and emergency 315 Security 36.01.210(4) 1999 preparedness plan 316 Placeholder Rail fixed guideway system security and emergency 317 Security 36.57.120(4) 1999 preparedness plan Rail fixed guideway system security and emergency 318 Security 36.57A.170(4) 1999 preparedness plan *See also May 2016, Financial info on master tenant, concessioners, team Financial, Commercial and Aug. 2016 & Oct. 2016 - 319 36.102.200 affiliate, or sublease of a public stadium authority’s 1997 Proprietary Information 42.56.270 & trade facilities secrets/proprietary info Trade secrets & proprietary information from *See also May 2016, 39.10.100 (2) recod. Financial, Commercial and contractors under alternative public works; proposals Aug. 2016 & Oct. 2016 - 320 as 39.10.470 (2); 1994 Proprietary Information from design-build finalists for alternative public works 42.56.270 & trade 39.10.470(3) until selection is made or terminated secrets/proprietary info Financial, Commercial and Competitive bids subject to chapter 42.56 RCW 321 Proprietary Information - 39.26.030(2) except exempt from disclosure until apparent 2012 c 224 s 4 Aug. 2016; Oct. 2016 Oct. 2016 2017: HB 1160/SB 5418 Bids successful bidder announced May 2012; August 2012; 322 Archive Records 40.14.030 (2) Records transferred to state archives 2003 Aug. 2012 June 2013 Sex offender records transferred to Washington 323 Offender Records 40.14.070 (2)(c ) 1999 association of sheriffs and police chiefs 324 Bill Drafting Records 40.14.180 Bill drafting records of the code reviser’s office 1971 Feb. 2015 Feb. 2015 Names of persons in domestic violence or sexual Crime Victims and 1999; 1991; 2015 c 190 s 325 40.24.070 assault programs; and records in address Witnesses 2 confidentiality program Public Employment Salary and fringe benefit info identifying private 326 41.06.160 1981 Information employer from department of personnel salary survey

20 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Public Employment Salary and fringe benefit rate info collected from 327 41.06.167 1980 Information private employers Collective bargaining authorization cards of adult 328 Collective Bargaining 41.56.029(2) 2007 family home provider workers Personal Information - Personally identifiable public records used in scientific 329 42.48.020 & .040 1985 Research research Crisis referral services communications and 330 Health Care Records 43.01.425 2009 c 19 s 2 information are confidential Investigative records of office of family and children’s 331 Investigative Records 43.06A.050 1996 ombudsman *See also May 2016, Financial, Proprietary and Info from businesses deemed confidential held by Aug. 2016 & Oct. 2016 - 332 43.07.100 1895 Commercial Information bureau of statistics in secretary of state 42.56.270 & trade secrets/proprietary info Investigative Records - Identity of person and documents in report to toll-free 333 43.09.186(4) 2007 Whistleblower efficiency hotline - state auditor Certain financial information supplied to department Financial, Proprietary and 334 42.56.270(22) of financial institutions or a portal to obtain an 2014 c 144 s 6 Commercial Information exemption from state securities registration Child welfare records that may assist in meeting the 335 Juvenile Records 13.50.010(15) 2016 c 71 s 2 May 2019; Aug. 2019 educational needs of foster youth 336 Placeholder Print jobs contracted with private vendors must Personal Information - require vendor to enter into a confidentiality 337 43.19.736 2011 c 43 1st sp. s. s 309 Printing Vendors agreement if materials contain sensitive or personally identifiable information 43.41.350 Recod 1989; 2011 1st sp. s. c 43 338 Claims Risk management loss history information 43.19.781 s 535 Marijuana transport, vehicle and driver ID data and Financial, Proprietary and account numbers or unique access identifiers issued 339 Commercial Information - 42.56.270(25) 2016 c 178 s 2 for traceability system access per RCW 69.50.325, Marijuana 9.50.331, 69.50.342, 69.50.345 *See also May 2016, Aug. 2016 & Oct. 2016 - Financial, Commercial and Information on unique production processes given to 42.56.270 & trade 340 43.21A.160 1970 Proprietary Information the DOE secrets/proprietary info; Sept. 2020; Oct. 2020; Feb. 2021 *See also May 2016, Financial, Commercial and Proprietary information received by the state energy Aug. 2016 & Oct. 2016 - 341 43.21F.060(1) 1976 Proprietary Information office 42.56.270 & trade secrets/proprietary info Employer labor statistics reports provided to the 342 Employer - Labor Statistics 43.22.290 1901 Sept. 2020; Oct. 2020 department of labor & industries

21 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills *See also May 2016, Financial, Commercial and Aug. 2016 & Oct. 2016 - 343 43.22.434 Info obtained from contractors through an audit 2002 Proprietary Information 42.56.270 & trade secrets/proprietary info Deliberative Process - Confidential reports made to the governor by director Sept. 2020; Oct. 2020; 344 Records Provided to 43.41.100 1969 of office of financial management Feb. 2021; May 2021 Governor

Washington state patrol information in records 345 Investigative Records 43.43.710 1972 May 2021; Aug. 2021 relating to the commission of any crime by any person

43.43.762 – 346 Investigative Records referenced in Information in criminal street gang database 2008 c 276 s 201 42.56.240(6) Washington state patrol organized crime Investigative 347 Investigative Records 43.43.856 1973 May 2021 information Financial information provided to operating agencies *See also May 2016, Financial, Commercial and in bid forms and experience provided by a contractor Aug. 2016 & Oct. 2016 - 348 43.52.612 1982 Proprietary Information to a joint operating agency regarding bids on 42.56.270 & trade constructing a nuclear project secrets/proprietary info Health care related data identifying patients or 349 Health Care 43.70.050(2) 1989 providers obtained by state agencies 350 Health Care 43.70.052 American Indian health data 1995; 2014 c 220 s 2 Hospital reports and information on health care- 351 Health Care 43.70.056(2)(e)(ii) 2007 associated infections Info and documents relating to maternal mortality 352 Health Care 42.56.360(4); 70.54 2016 c 238 s 2 reviews per RCW 70.54 Health Care Professions - Identity of whistleblower who makes a complaint to 353 43.70.075 1995 Whistleblower the department of health re: improper care Information and documents created, collected and 354 Health Care Professions 43.70.510 2005 maintained by a quality assurance committee Healthcare workforce surveys identifying individual 355 Health Care Professions 43.70.695(5) 2006 providers Complaint and investigation records of long-term care 356 Investigative Records 43.190.110 1983 ombudsman

Employment Records, Criminal justice training commission records from 357 43.101.400 2001; 2021 Investigative Records initial background investigations

Investigative Records - 358 43.235.040(1) Domestic violence fatality review info 2000 Fatality Review *See also May 2016, Protocols may not require release of information that Financial, Commercial and Aug. 2016 & Oct. 2016 - 359 43.330.062 associate development organization client company 2011 c 286 s 1 Proprietary Information 42.56.270 & trade has requested remain confidential secrets/proprietary info

22 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Individual identification in released health care data 360 Health Care 43.370.050(2) 2007 for studies and analysis Motor Vehicle/Driver 46.12.380(1) Recod Names and addresses of motor vehicle owners 361 1984; 2016 c 80 s 2 Records 46.12.635 except for "business" & other purposes 362 Placeholder Check codified citation 2010 c 161 s 1210 Motor Vehicle/Driver Info on physically or mentally disabled person Sept. 2020; Oct. 2020; 363 46.20.041 1965 Records demonstrating ability to drive Feb. 2021 Motor Vehicle/Driver 364 46.20.118 Photos on drivers’ licenses & identicards 1981 Records Motor Vehicle/Driver May 2021; Aug. 2021; 365 46.52.065 Blood sample analyses done by state toxicology 1971 Records Oct. 2021 Motor Vehicle/Driver 366 46.52.080 & .083 Most info in police accident reports 1937 Feb. 2021 Records Motor Vehicle/Driver Feb. 2021; May 2021; 367 46.52.120 Individual motor vehicle driver records 1937 Records Aug. 2021 Motor Vehicle/Driver 368 46.52.130 Abstracts of motor vehicle driver records Records Motor Vehicle/Driver Feb. 2021; May 2021; 369 46.70.042 Application for vehicle dealer licenses, for 3 years 1967 Records Aug. 2021; Oct. 2021 Motor Vehicle/Driver Information obtained by a court order pursuant to 370 46.35.030(1)(a) 2009 c 485 s 3 Records discovery is not subject to public disclosure *See also May 2016, Financial, Commercial and Info supplied to department of transportation to qualify Aug. 2016 & Oct. 2016 - 371 47.28.075 1981 Proprietary Information contractors for highway construction 42.56.270 & trade secrets/proprietary info *See also May 2016, Aug. 2016 & Oct. 2016 - Financial, Commercial and Financial info submitted to qualify to submit bid for 42.56.270 & trade 372 47.60.760 1983 Proprietary Information ferry construction contracts secrets/proprietary info; and RCW39.26.030 (bid information) Personally identifiable info of employees and other security info of a private cloud service provider that 373 Personal Information 42.56.420(6) 2016 c 152 s 1 has entered into a criminal justice information services agreement Information provided in the course of an insurance 374 Insurance Information 48.02.065(1) 2007 commissioner examination 375 Insurance Information 48.05.510(4) Insurer's reports to insurance commissioner 1995 Information related to investment policies provided to 2011 c 188 s 16 376 Insurance Information 48.13.151 the insurance commissioner is confidential and not a (eff 7/1/12) public record Commissioner info relating to supervision of any 377 Insurance Information 48.31.405(1) 2005 insurer Information obtained in the course of an actuarial 378 Insurance Information 48.74. __(6) 2016 c 142 s 6 examination/investigation

23 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Request for examination into insurer's financial 379 Insurance Information 48.32.110(2) 1971 May 2021; Oct. 2021 condition Reports of material transactions by certified health 380 Insurance Information 48.43.200(4) 1995 plans Reports of material transactions by health care 381 Insurance Information 48.44.530(4) 1995 service contractors Current licensure of nonresident pharmacies through 382 Insurance Information 48.46.540 1991 which an insurer provides coverage Reports of material transactions by health 383 Insurance Information 48.46.600(4) 1995 maintenance organizations Documents and evidence provided regarding life Insurance Information - 384 48.102.140(5)(a) settlement act fraud investigations are confidential 2009 c 104 s 17 Investigations and not public records 385 Insurance Information 48.104.050(1) Holocaust insurance company registry records 1999 Workers Compensation Labor & industries investigative reports on industrial May 2021; Aug. 2021; 386 49.17.260 1973 Records catastrophes Oct. 2021 Option for human rights commission complaints not 387 Investigative Records 49.60.240 1993 to be made public Name of employee seeking records of agricultural Aug. 2017; Oct. 2017; 388 Agriculture and Livestock 49.70.119(6)(a) 1973 Aug. 2018 pesticide applications May 2018; Aug. 2018 Crime Victims and Employee’s information regarding domestic violence 389 49.76.040 2008 c 286 s 4 Witnesses is confidential Domestic violence leave information in files and Crime Victims and 390 49.76.090 records of employees is confidential and not open to 2008 c 286 s 10 Witnesses public inspection Employment Security 391 50.13.060(8) Welfare reform info in WorkFirst program 2000 Records *See also May 2016, Financial, Commercial and Financial & commercial info & records supplied to Aug. 2016 & Oct. 2016 - 392 53.31.050 1986 Proprietary Information port district export trading company 42.56.270 & trade secrets/proprietary info *See also May 2016, Financial, Commercial and Info relating to unclaimed property that is furnished to Aug. 2016 & Oct. 2016 - 393 63.29.380 1983 Proprietary Information the department of revenue 42.56.270 & trade secrets/proprietary info 394 Insurance Information 48.43.730 Provider compensation agreements are confidential 2013 c 277 s 1 Material obtained during an examination under RCW Financial, Commercial and 395 63.29.300(4) 63.29 is confidential and may not be disclosed except 2015 3rd sp s c 6 s 2107 Proprietary Information per RCW 63.29.380 Health Care; Investigative 396 68.50.105 Records of autopsies and post mortems 1953; 2013 c 295 s 1 Records Certain information released to tissue or organ 397 Health Care 68.64.190 2008 c 139 s 21 procurement organization is confidential

24 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Financial, Commercial and 69.41.044; Records and information supplied by drug *See also May 2016, Proprietary Information; 42.56.360(1)(a); manufacturers, and pharmaceutical manufacturer info 1987; 1989; 2013 c 19 s Aug. 2016 & Oct. 2016 - 398 Health Professions; Health 42.56.360(1)(b); obtained by the pharmacy quality assurance 47 42.56.270 & trade Care 69.45.090 commission secrets/proprietary info Info on legend drugs obtained by the pharmacy 399 Health Care 69.41.280 1989 quality assurance commission Opinion and memo submitted to the insurance 400 Insurance Information 48.74.--(1)(a) 2016 c 142 s 7 commissioner under RCW 48.74.025 Names of persons participating in controlled 401 Health Care 69.51.050 1979 substances therapeutic research programs 70.02.020, .050, et. Health care info disclosed to heath care provider w/o 402 Health Care 1991 al. patients permission Info gathered by health care workers from interviews 403 Health Care 70.24.022 1988 re. sexually transmitted diseases 404 Placeholder Records on hearings on dangerous sexual behavior 405 Health Care 70.24.034 1988 of sexually transmitted disease carriers 406 Placeholder 407 Health Care 70.28.020 Tuberculosis records 1899 Feb. 2021 408 Health Care 70.41.150 Department of health info on inspections of hospitals 1955 Feb. 2021; May 2021 Info maintained by a health care services quality 409 Health Care Professions 70.41.200(3) 1986 improvement committee Hospital records restricting practitioner’s privileges in 410 Health Care Professions 70.41.220 1986 possession of medical disciplinary board Identity of person from whom specimens of material 411 Health Care 70.42.210 1989 were taken at a medical test site 412 Health Care 70.47.150 Records of medical treatment 1990 413 Law Enforcement 70.48.100 Jail register records 1977 414 Health Care 70.54.250 Cancer registry program 1990 Info on birth & manner of delivery kept in birth 415 Health Care 70.58.055(2) 1991 certificate records 416 Fireworks 70.77.455 Fireworks license records 1995 *See also May 2016, Aug. 2016 & Oct. 2016 - Financial, Commercial and Info provided to DOE on processes or if may affect 417 70.94.205 1967 42.56.270 & trade Proprietary Information competitive position relating to air quality secrets/proprietary info; May 2021; Oct. 2021 Guidelines for proprietary info on solid waste *See also May 2016, Financial, Commercial and management practices in possession of DOE [Since Aug. 2016 & Oct. 2016 - 418 70.95.280 1989 Proprietary Information this addresses guidelines, not clear if it is an 42.56.270 & trade exemption.] secrets/proprietary info

25 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills *See also May 2016, Financial, Commercial and Proprietary info re. waste reduction in possession of Aug. 2016 & Oct. 2016 - 419 70.95C.040(4) 1988 Proprietary Information DOE 42.56.270 & trade secrets/proprietary info *See also May 2016, Financial, Commercial and Aug. 2016 & Oct. 2016 - 420 70.95C.220(2) Waste reduction plans 1990 Proprietary Information 42.56.270 & trade secrets/proprietary info *See also May 2016, Financial, Commercial and Some info in executive summaries of waste reduction Aug. 2016 & Oct. 2016 - 421 70.95C.240(1) 1990 Proprietary Information efforts 42.56.270 & trade secrets/proprietary info *See also May 2016, Financial, Commercial and Aug. 2016 & Oct. 2016 - 422 70.95N.140(4) Proprietary info in electronic product recycling reports 2006 Proprietary Information 42.56.270 & trade secrets/proprietary info 423 Placeholder 424 Health Care 70.104.055 Reports on pesticide poisoning 1989 *See also May 2016, Financial, Commercial and Manufacturing or business info re: Hazardous waste Aug. 2016 & Oct. 2016 - 425 70.105.170 1983 Proprietary Information management in possession of DOE 42.56.270 & trade secrets/proprietary info *See also May 2016, Financial, Commercial and Trade secret info re: On-site sewage disposal in Aug. 2016 & Oct. 2016 - 426 70.118.070 1994 Proprietary Information possession of DOE 42.56.270 & trade secrets/proprietary info

Investigative Records - Name of whistleblower in nursing home or state 427 70.124.100 1997 Whistleblower hospital Crime Victims and By implication records of community sexual assault 428 70.125.065 1981; 2012 c 29 s 11 Witnesses program or underserved populations provider 429 Placeholder 430 Health Care 70.127.190 Hospice records 1988 Personal and clinical records of long-term care 431 Health Care 70.129.050 1994 residents *See also May 2016, Tobacco product manufacturers’ information required Financial, Commercial and Aug. 2016 & Oct. 2016 - 432 70.158.050 to comply with chapter 70.58 RCW is confidential and 2003 Proprietary Information 42.56.270 & trade shall not be disclosed secrets/proprietary info Limitations on disclosure of reports made by hospital 433 Health Care 70.168.070 1990 trauma care on-site review teams Patient records and quality assurance records 434 Health Care 70.168.090 1990 associated with trauma care facilities 435 Health Care 70.170.090 Charity care information in hospitals 1989

26 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Ambulatory surgical facilities data related to the 436 Health Care 70.230.110 2007 quality of patient care Information received by department of health 437 Health Care 70.230.170 2007 regarding ambulatory surgical facilities Persons receiving notice and the notice of release or 438 Health Care 71.05.425 transfer of a person committed following dismissal of 2013 c 289 s 6 offense 439 Health Care 71.05.620 Records on mental health treatment 1989; 2013 c 200 s 34 Investigative Records; 74.34.035(10); Investigation relating to vulnerable adult; attorney 440 2013 c 263 s 2 Attorney Client Privilege 74.34.067 client privilege Names of victims, next of kin, or witnesses who are Crime Victims and 441 71.09.140(2) notified when sexually violent predator escapes, on 1995 Witnesses parole, or released 442 Health Care 71.24.035(5)(g) Mental retardation records 1982 443 Health Care 71.34.340 Records on mental treatment of minors 1985 444 Health Care 71.34.335 Mental health court records are confidential 1985 Information furnished pursuant to the Medicaid fraud Health Care; Investigative false claims act is exempt until final disposition and 445 74.66.030; 74.66.120 2012 c 241 s 203, 212 Records all seals are lifted; records and testimony provided under civil investigative demand Confidential info re. developmentally disabled 446 Health Care 71A.14.070 1988 May 2019 persons 447 Health Care 72.05.130(1) Reports regarding children with behavioral problems 1951 Feb. 2021; May 2021 Info from correctional industries work program 448 Offender Records 72.09.116 2004 participant or applicant 449 Offender Records 72.09.345(4) Certain info on sex offenders held in custody 1997; 2011 c 338 s 5 Personally identifiable info used to develop quarterly 450 Personal Information 70.39A.-- expenditure reports for certain long term care 2016 1st sp s. c 30 s 3 services [Former Investigative, law 9.94A.610(1)(b)] 1991; Recod 2008 c 231 Names of witnesses notified when drug offenders 451 enforcement and crime 72.09.710 (recod eff s 26 9 (see dispositions released victims 8/1/09) (see also ## table) 233 and 235) 452 Placeholder [Former Investigative, law Names of victims, next of kin, or witnesses who are 9.94A.612(1)] 1995; Recod 2008 c 231 453 enforcement and crime notified when prisoner escapes, on parole, or 72.09.712 (recod eff s 27 victims released 8/1/09) 454 Placeholder Limited access to information in department of social 455 Public Assistance 74.04.060 & .062 and health services registry concerning parents of 1941 Feb. 2021 dependent children 456 Public Assistance 74.20.280 Child support records 1963 Feb. 2021 457 Public Assistance 74.04.520 Names of recipients of food stamps 1969 Feb. 2021

27 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills 458 Health Care 74.09.290(1) Medical records of persons on public assistance 1979 A juvenile’s status as a sexually aggressive youth and related information are confidential and not subject to 459 Juvenile Records 74.13.075(5) 2009 c 250 s 2 public disclosure by department of social and health services Child fatality reports are subject to disclosure but 460 Juvenile Records 74.13.640 2011 c 61 s 2 May 2019; Aug. 2019 confidential information may be redacted [Former 74.13.121] Info from adoptive parents of kids receiving public 461 Juvenile Records 1971; 2009 c 520 s 95 May 2019; Aug. 2019 74.13A.045 (recod) assistance 462 Placeholder [Former 74.13.133] 463 Juvenile Records Adoption support records 1971; 2009 c 520 s 95 May 2019; Aug. 2019 74.13A.065 (recod) 464 Placeholder 465 Juvenile Records 74.13.280(2) Info on child in foster care & child’s family 1990 May 2019; Aug. 2019 Juvenile Records; Public May 2019; Aug. 2019; 466 74.13.500 - .525 Disclosure of child welfare records 1997 Assistance Oct. 2019; Feb. 2020 Personal information - Personal info maintained by the department of 467 74.18.127(1) 2003 clients services for the blind Juvenile Records; Public 468 74.20A.360 & .370 Certain records in division of child support 1997 May 2019; Aug. 2019 Assistance Whistleblower; Investigative, law Identity of person making report on abuse of 469 74.34.040 1984 enforcement and crime vulnerable adult victims Investigative, law Identity of persons in records of abused vulnerable 470 enforcement and crime 74.34.090 1984 adults victims Investigative, law 471 enforcement and crime 74.34.095(1) Info concerning the abuse of vulnerable adults 1999 victims Name of whistleblower reporting abuse of vulnerable 472 Whistleblower 74.34.180(1) 1997 adults in various facilities Investigative, law Files, etc. used or developed for vulnerable adult 473 enforcement and crime 74.34.300 2008 c 146 s 10 fatality reviews victims

474 Health Care 74.42.080 Records on nursing home residents 1979

Information and documents created, collected and 475 Health Professions 74.42.640 2005 maintained by a quality assurance committee *See also May 2016, Financial, Commercial and Aug. 2016 & Oct. 2016 - 476 78.44.085(5) Surface mining info 2006 Proprietary Information 42.56.270 & trade secrets/proprietary info

28 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills *See also May 2016, Aug. 2016 & Oct. 2016 - Financial, Commercial and Well logs on oil capable of being produced from a 477 78.52.260 1951 42.56.270 & trade Proprietary Information “wildcat” well secrets/proprietary info; Feb. 2021; May 2021 *See also May 2016, [Former 79.76.230] - Financial, Commercial and Geothermal records filed w. department of natural Aug. 2016 & Oct. 2016 - 478 recodified as 1974 - Recodified 2003 Proprietary Information resources 42.56.270 & trade 78.60.230 secrets/proprietary info Investigative, law Certain boating accident reports provided to the parks 479 enforcement and crime 79A.60.210 1984 & recreation commission victims Investigative, law 480 enforcement and crime 79A.60.220 Boating accident reports/coroner 1987 victims Rail fixed guideway system security and emergency 481 Security 81.104.115(4) 1999; 2016 c 33 s 8 preparedness plan Rail fixed guideway system security and emergency 482 Security 81.112.180(4) 1999 preparedness plan *See also May 2016, Financial, Commercial and Aug. 2016 & Oct. 2016 - 483 Proprietary Information - 82.32.330(2) Certain tax return and tax information At least 1935 42.56.270 & trade Tax Info secrets/proprietary info; Feb. 2021; Aug. 2021 *See also May 2016, Financial, Commercial and Taxpayer info supplied for survey is not disclosable. Aug. 2016 & Oct. 2016 - 484 Proprietary Information - 82.32.585 Amt of tax deferral is not subject to 82.32.330 2010 c 114 s 102(4) 42.56.270 & trade Tax Info confidentiality provisions secrets/proprietary info 485 Placeholder *See also May 2016, Financial, Commercial and Info from tribes or tribal retailers received by the state Aug. 2016 & Oct. 2016 - 486 Proprietary Information - 82.38.310(4) 2007 under a special fuel taxes agreement 42.56.270 & trade Tax Info secrets/proprietary info *See also May 2016, Financial, Commercial and Taxpayer info supplied for survey is not disclosable. Aug. 2016 & Oct. 2016 - 487 Proprietary Information - Amt of tax deferral is not subject to 82.32.330 2008 c 15 s 2 42.56.270 & trade Tax Info confidentiality provisions secrets/proprietary info Financial, Commercial and Amounts less than $10,00 claimed in a tax 2012 snd sp s. c 13 s 488 Proprietary Information - 82.32.808 preference; exceptions 1702 Tax Info Tax info obtained by department of revenue if highly *See also May 2016, Financial, Commercial and offensive to a reasonable person and not a legitimate Aug. 2016 & Oct. 2016 - 489 Proprietary Information - 84.08.210 1997 concern to public or would result in unfair competitive 42.56.270 & trade Tax Info disadvantage secrets/proprietary info

29 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills *See also May 2016, Financial, Commercial and Income data for retired or disabled persons seeking Aug. 2016 & Oct. 2016 - 490 Proprietary Information - 84.36.389 1974 property tax exemptions 42.56.270 & trade Tax Info secrets/proprietary info *See also May 2016, Financial, Commercial and Aug. 2016 & Oct. 2016 - 491 Proprietary Information - 84.40.020 Confidential income data in property tax listings 1973 42.56.270 & trade Tax Info secrets/proprietary info *See also May 2016, Utilities & transportation commission records Aug. 2016 & Oct. 2016 - Financial, Commercial and 492 84.40.340 containing commercial info a court determines 1961 42.56.270 & trade Proprietary Information confidential secrets/proprietary info; May 2021; Oct. 2021 Aug. 2017; Oct. 2017; 493 Agriculture and Livestock 90.64.190 Livestock producer info 2005 Feb. 2018; May 2018 *See also May 2016, Names and identification data from participants in Financial, Commercial and 2007 c 522 § 149 (3) Aug. 2016 & Oct. 2016 - 494 survey to identify factors preventing the widespread 2007 Proprietary Information (uncodified) 42.56.270 & trade availability and use of broadband technologies secrets/proprietary info 495 Health Care 70.02.220 - .260 Health care information 2013 sp. S c 200 ss 6-10 Information relating to infant mortality pursuant to 496 Health Care 42.56.360(1)(f) 1992 RCW 70.05.170 Certain information obtained by state and local agencies from dairies, animal feeding operations not Dairies, Animal Feeding Aug. 2017; Oct. 2017; 497 42.56.610 required to apply for a national pollutant discharge 2005 (c510s5) Operations Feb. 2018; May 2018 elimination system permit disclosable only in ranges that provide meaningful information to public Investigative, law Information regarding victims, survivors of victims, or 498 enforcement and crime 9.95.260 witnesses that are sent pardon hearing notices may 1999 victims not be released to offender *See also May 2016, Financial, Commercial and Instrument creating a charitable trust, possibly only if Aug. 2016 & Oct. 2016 - 499 Proprietary Information - 11.110.075 the instrument creates a trust for both charitable and 1971 42.56.270 & trade Trusts non-charitable purposes secrets/proprietary info; Feb. 2021; May 2021 Information on juvenile conviction by adult criminal 13.04.155; 500 Juvenile Records court given to school principal and received by school 1997; 2020 28A.320.163(5) district staff Records of the interstate compact for juveniles that 501 Juvenile Records 13.24.011 would adversely affect personal privacy rights or 2003 proprietary interests Sources of confidential information in dispositional 502 Boarding Homes 13.40.150 1977 hearings on juvenile offenses

30 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills 503 Placeholder 50.13.015, .020, Most info supplied to employment security 504 Employment Security .040, .050, .100 & 1977 department 110 Financial, Commercial and Financial or valuable trade info from health care 505 51.36.120 1989 Proprietary Information providers, if request 506 Health Care 70.05.170 Medical records re. Child morality review 1992 Information regarding a youth subject to RCW 13.34 507 Juvenile Records 13.34.046 is confidential except as required under lawful court 2013 c 182 s 5 May 2019; Aug. 2019 order 508 Placeholder Investigative, law 79A.60.210 Certain boating accident reports provided to the parks 509 enforcement and crime 1984 79A.60.220 & recreation commission victims Investigative, law Felony firearm offense conviction database of felony 510 enforcement and crime 42.56.240(10) 2013 c 183 s 1 firearm offenders established in RCW 43.43.822 victims Investigative, law Security threat group information collected and 511 enforcement and crime 42.56.240(12) 2013 c 315 s. 2 maintained by department of corrections victims Legal proceedings; 7.77.140; 7.77.150; Confidentiality of collaborative law proceedings; 512 2013 c 119ss 15 - 18 Privilege 7.77.160; 7.77.170 privilege 38.32; 42.56.230(9); SB 1980 (2015); Ch. 224, 513 Emergency Information Enhanced 911 Call information 2015 c 224 s 2, 6 Feb. 2014; Feb. 2015 Feb. 2015 38.52.575; 38.52.577 2015 Laws Investigative, law Campus sexual assault/domestic violence 514 enforcement and crime 42.56.240(16) 2017 c 72 s 3 communications and records victims Investigative, law 515 enforcement and crime 42.56.240(17) Law enforcement information from firearms dealers 2016 c 261 s 7 victims 516 Employment and Licensing 42.56.250(3) Professional growth plans 2017 c 16 s 1 GPS data of public employees or volunteers using 517 Employment and Licensing 42.56.250(10) 2017 c 38 s 1 GPS system recording device Financial, Commercial and Trade secrets etc. re to licensed marijuana business, 518 42.56.270(28) 2017 c 317 s 7 Proprietary Information submitted to LCB Public Utilities and Personally identifying information in safety complaints 519 42.56.330(9) 2017 c 333 s 7 Transportation submitted under ch. 81-61 RCW Non public personal health information obtained by, 520 Insurance & Financial Inst. 42.56.400(26) discussed to, or in custody of the insurance 2017 c 193 s 2 commissioner Data, information, documents obtained by insurance 2017 3rd sp. sess. c 30 s 521 Insurance & Financial Inst. 42.56.400(27) commissioner under RCW 48.02 2 May 2017; Aug. 2017; Oct. 2017; May 2018; 42.56.430(3); Damage prevention agreement, non lethal Aug. 2018; Feb. 2019; 522 Fish & Wildlife 2017 c 246 s 1 77.12.885 preventative/measures to minimize wolf interactions Aug. 2020; Feb. 2021; May 2021; Aug. 2021; Oct. 2021; Nov. 2021

31 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills May 2017; Aug. 2017; Oct. 2017; May 2018; 42.56.430(4); Aug. 2018; Feb. 2019; 523 Fish & Wildlife Reported depredation by wolves on pets or livestock 2017 c 246 s 1 77.12.885 Aug. 2020; Feb. 2021; May 2021; Aug. 2021; Oct. 2021; Nov. 2021 Tribal fish & shellfish harvest information - May 2017; Aug. 2017; 524 Fish & Wildlife 42.56.430(7) 2017 c 71 s 1 department of fish & wildlife Oct. 2017 Commercial shellfish harvest information - 525 Fish & Wildlife 42.56.430(8) 2017 c 71 s 1 Aug. 2017; Oct. 2017 department of fish & wildlife Health/safety information from DYF to department of 526 Juvenile Records 13.50.010(16) commerce re youth in foster care admitted to 2017 c 272 s 1 May 2019; Aug. 2019 CRCs/HOPE centers DYF disclosures re child abuse/neglect, and for 527 Juvenile Records 13.50.010(17) 2017 3rd sp. s. c 6 5312 May 2019; Aug. 2019 health care coordination 2017 c 306 s 2; 2017 2nd 528 Personal Information 40.26.020 Biometric identifiers sp. s. c 1 s 1 Information used to develop an individual health 529 Insurance Information 48.02.230 2017 3rd sp. s. c 30 s 1 insurance market stability program

530 Health Care 50A.04.195(4)&(5) Family/medical leave 2017 3rd sp. s. c 5 s 29 531 Health Care 50A.04.080(2)(b) Family/medical leave from employer records 2017 3rd sp. s. c 5 s 33 2017 3rd sp. sess. c 5 s 532 Health Care 50A.04.205 Family/medical leave ombuds surveys 88 Voter and Election Personally Identifiable voter registration information 533 Information - Personal 42.56.230(10) 2018 for individuals under 18 Information Religious Beliefs; Personal Personal identifying information about an individual's Oct. 2018; Feb. 2019; 534 42.56.235 2018 Aug. 2019 Information religious beliefs May 2019; Aug. 2019 Investigative, law Audio and video recordings of child interviews 535 enforcement, crime 42.56.240(18) 2018 regarding child abuse or neglect victims; Juvenile Records Voter and Election Information - Employment Personally Identifiable voter registration information 536 42.56.250(11) 2018 and Licensing; Personal for individuals under 18 Information Financial, commercial, operations, technical, and research information submitted to the Andy Hill Financial, Commercial and 537 42.56.270(29) cancer research endowment program pertaining to 2018 Proprietary Information grants under chapter 43.348 RCW, that if revealed would result in private loss Financial, Commercial and Proprietary information filed with the department of 538 Proprietary Information; 42.56.270(30) 2018 health Health Care

32 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Information obtained from the federal government if exempt from disclosure under federal law and 539 Agriculture and Livestock 42.56.380(13) 2018 personal financial information or proprietary data obtained by the department of agriculture 540 Agriculture and Livestock 42.56.380(14) Hop grower lot numbers and lab results 2018 An insurer's corporate governance annual disclosure 541 Insurance & Financial Inst. 42.56.400(28) and related information obtained by the insurance 2018 commissioner Claims, health care, and financial information Insurance & Financial Inst.; 542 42.56.400(28) submitted by school districts to the office of the 2018 Health Care insurance commissioner and health care authority Records regarding a person's voluntary waiver of 543 Firearms 9.41.350(6) 2018 firearm rights Information obtained from the federal government if 544 Agriculture and Livestock 15.135.100(1) 2018 exempt from disclosure under federal law Agriculture and Livestock; Personal Information; Personal financial information or proprietary data 545 15.135.100(2) 2018 Financial, Commercial, and obtained by the department of agriculture Proprietary Information Child Abuse; Juvenile Recorded child interviews regarding child abuse or 546 Records; Investigative 26.44.187 2018 neglect Records Parentage; Personal Personally identifiable information of the child and 547 26.26A.050 2018 Information others in parentage proceedings Elections; Personal The personally identifiable voter registration 548 29A.08.720(2)(b) 2018 Information information of individuals under 18 The personally identifiable voter registration Elections; Personal 549 29A.08.770 information of individuals under 18 maintained by the 2018 Information secretary of state and county auditors Personal information supplied to obtain a driver's Elections; Personal 550 29A.08.359 license or identicard and used to certify registered 2018 Information voters A plaintiff's filing of an action regarding equal voting 551 Elections 29A.92.100(3) 2018 rights under the Washington voting rights act of 2018 Claims, health care, and financial information 552 School District Insurance 41.05.890(2) submitted by school districts to the office of the 2018 insurance commissioner and health care authority Oversight board for children, youth, and families 553 State Government 43.216.015(15) records, only the information if otherwise confidential 2018 under state or federal law Information regarding investigations exchange State Government; 554 43.06C.060(3) between the office of the corrections ombuds and the 2018 Investigative Records department of corrections

33 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills An insurer's corporate governance annual disclosure 555 Insurance Information 48.195.040(1) and related information submitted to the insurance 2018 commissioner Unwanted Medication Disposal; Financial, Proprietary information submitted to the department 556 69.48.170 2018 Commercial and of health regarding unwanted medication disposal Proprietary Information Financial, Commercial, and Financial and proprietary information submitted to or 557 42.56.270(13) Proprietary Information obtained by the department of ecology Financial and commercial information provided as Financial, Commercial, and 558 42.56.270(15) evidence to the department of licensing from special Proprietary Information fuel licensees or motor vehicle fuel licensees Financial, commercial, operations, and technical and Financial, Commercial, and 559 42.56.270(18) research information submitted to health sciences Proprietary Information and services authorities if private loss would result Information that can be identified to a particular Financial, Commercial, and 560 42.56.270(19) business that was gathered as part of agency rule Proprietary Information making Information distributed to a health profession board or Health Care Professionals; 561 42.56.355 commission by an interstate health professions 2017 Health Care licensure compact Registration information of members of medical 562 Marijuana 42.56.630 marijuana cooperatives submitted to the liquor and 2015 cannabis board Health Professionals; Personal identifying information of vulnerable 563 42.56.640 2017 Personal Information individuals and in-home caregivers Court-ordered mental health treatment records 564 Health Care 71.05.445(4) 2000 received by the department of corrections Health Care Professionals; 565 74.09.315(2) Identity of whistleblower Whistleblower Personal Information; 566 43.185C.030 Personal information collected in homeless census Public Assistance 567 Juvenile Records 26.44.125(6) Child abuse or neglect review hearings 2012 568 Juvenile Records 74.13.285(4) Information on a child in foster care or child's family 2007 Health Professionals; Personal information of vulnerable adults and in- 569 74.39A.275(5) 2016 Personal Information home care providers Health Professionals; Personal information of vulnerable individuals and in- 570 43.17.410 2017 Personal Information home caregivers Health Care; Personal Personal identifying information of complainant and 571 Information; Investigative 74.39A.060(6) residents in a complaint against a long-term care Records facility Health Care; Financial, Commercial, and 572 41.05.026 Health care contractor proprietary information Proprietary Information; Trade Secret

34 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Collective bargaining authorization cards of public 573 Collective Bargaining 41.56.510 2010 employees Information submitted to state regarding people self- 574 Personal Information 42.56.230(11) excluding themselves from gambling activities under 2019 RCW 9.46.071 and 67.70.040 Personal information of individuals who participated in Personal Information; 575 42.56.230(12) the bump-fire stock buy- back program under RCW 2019 Firearms 43.43.920 Confidential, valuable, commercial information filed Financial Commercial, and 576 42.56.270(31) with the Department of Ecology regarding the 2019 Proprietary Information architectural paint stewardship program Agriculture and Livestock; Trade secrets, commercial information, and other Financial, Commercial, and 577 42.56.380(15) confidential information obtained by the federal Food 2019 Proprietary Information; and Drug Administration by contract Trade Secret Agriculture and Livestock; Trade secrets, commercial information, and other Financial, Commercial, and 578 15.130.150 confidential information obtained by the federal Food 2019 Proprietary Information; and Drug Administration by contract Trade Secret Findings and orders that disapprove the acquisition of 579 Insurance & Financial Inst. 42.56.400(29) 2019 a state trust company Personal Information; 42.56.660 (effective Agency employee records if the requester sexually 580 2019 Employment and Licensing 7/1/2020) harassed the agency employee Personal Information; 42.56.675 (effective Lists of agency employees compiled by agencies to 581 2019 Employment and Licensing 7/1/2020) administer RCW 42.56.660 42.56.650, Data submitted by health carriers to the Health 582 Health Care 2019 41.05.410(3)(b) Benefit Exchange and Health Care Authority Court Proceedings; 11.130.300(3) Visitor report and professional evaluation regarding 583 2019 Guardian (effective 1/1/21) appointment of guardian for an adult Court Proceedings; 11.130.410(3) Visitor report and professional evaluation regarding 584 2019 Conservator (effective 1/1/21) conservatorship of a minor Information submitted to the attorney general 585 Health Care 19.390.070 regarding potential anticompetitive conduct in the 2019 health care market 586 Placeholder Personal Information; Information provided to multidisciplinary child Investigative, law 587 26.44.175(5) protection team members in the course of a child 2019 enforcement, and crime abuse or neglect investigation victims Insurance and Financial Department of Financial Institutions' records in Institutions; Financial 588 30B.44B.170 connection to involuntary liquidation of a state trust 2019 Commercial and company Proprietary

35 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Insurance and Financial Department of Financial Institutions' findings and Institutions; Financial 589 30B.53.100(3) order on the disapproval of a proposed acquisition of 2019 Commercial and a state trust company Proprietary Broadband service provider confidential business and State Government; financial information submitted as part of an objection 590 Financial Commercial, and 43.155.160(6)(g) 2019 to an application for a grant to expand access to Proprietary Information broadband service Modification hearing information on the suspension or 591 State Government 42.17A.120(3) modification of campaign finance reporting 2019 requirements under 42.17A.710 State Government; Health Pharmacy benefit manager information reported to 592 43.71C.030(2) 2019 Care the Health Care Authority State Government; Health 43.71C.050(7); Prescription drug manufacturer information reported 593 2019 Care 060(5); 070(3) to the Health Care Authority State Government; Health 594 43.71C.100 Health Care Authority prescription drug data 2019 Care Insurance; Health Care; Nonpublic personal health information held by health 595 48.43.505(4) 2019 Personal Information carriers and insurers Licensed marijuana business's financial and Financial, Commercial, and proprietary information supplied during consultative 596 Proprietary Information; 69.50.561(6) 2019 services by the Washington State Liquor and Marijuana Cannabis Board State Government; Health Information submitted to the prescription monitoring 597 70.225.040(1) 2019 Care program State Government; Confidential, valuable, commercial information filed 598 Financial Commercial, and 70.375.130 with the Department of Ecology regarding the 2019 Proprietary Information architectural paint stewardship program State Government; Health 70.58A.400(5) Sealed birth records with adoption decrees under 599 2019 Care (effective 1/1/21) chapter 26.33 RCW State Government; Health 70.58A.500(3) 600 Sealed live birth records 2019 Care (effective 1/1/21) Certification of birth or fetal death, including State Government; Health certification of birth resulting in stillbirth, that includes 601 70.58A.530(15), (16) 2019 Care information from the confidential section of the birth or fetal death record State Government; Health 70.58A.540 (effective 602 Vital records, reports, statistics, and data 2019 Care 1/1/21) Employment and Personal demographic details voluntarily submitted by 603 Licensing; Personal 42.56.250(11) 2020 state employees Information Financial, Commercial, and Commercial information obtained by the Liquor and 604 42.56.270(32) 2020 Proprietary Information Cannabis Board in connection with distiller licensing Certain student information received by school 605 Educational Information 42.56.315 2020 districts 42.56.360(1)(I); Medical information about members of retirement 606 Health Care 2020 41.04.830 plans

36 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Health care information held by the Health Care Cost 607 Health Care 70.390.030(7) 2020 Transparency Board that could identify a patient 42.56.375; Educational Information; 28B.112.060(3); Identifying information regarding sexual misconduct 608 Crime Victim and 2020 28B.112.070(2); complainants and witnesses Witnesses 28B.112.080(5) 42.56.400(31); Insurance and Financial Contracts with health care benefit managers filed with 609 48.200.040; 2020 Information; Health Care the Insurance Commissioner 48.43.731 Mental health information received in connection with 610 Firearms; Health Care 9.41.111(1)(c) a firearm frame or receiver purchase or transfer 2020 application Juvenile Records; Confidential information and sealed records accessed Investigative, law 611 13.50.260(12) through the Washington state identification system by 2020 enforcement and crime criminal justice agencies victims Juvenile Records; Public Reports, reviews, and hearings involving certificates 612 74.13.730(7) 2020 Assistance of parental improvement Data collected by the Undocumented Student 613 Education Information 28B.96.020(8) 2020 Support Loan Program Motor Vehicle/Driver Confidential information obtained by the Cooper 614 43.59.156(6)(a) 2020 Records Jones Active Transportation Safety Council Motor Vehicle/Driver 46.20.117(6); Self-attestations and data provided for identicard and 615 2020 Records 46.20.161(6) driver's license designations Confidential information received by the work group 616 Juvenile Records 28A.300.544(6) on students in foster care and/or experiencing 2020 homelessness Gas pipeline company reports submitted to the UTC Public Utilities and 617 81.88.160(7) that contain proprietary data or where disclosure 2020 Transportation would affect public safety Financial and proprietary information provided to the Financial, Commercial, and 618 42.56.270(12)(a)(iii) Department of Commerce in connection with the 2021 Proprietary Information industrial waste coordination program Certain information obtained from the federal Food State Government; Public and Drug Administration by Department of Health 619 42.56.380(16) 2021 Health public health laboratories for monitoring food supplies for contaminants 620 Elections 42.56.420(7) Certain election security information 2021 Personal information obtained by the Department of 621 Personal Information 42.56.680 Commerce from residential real property notices of 2021 c 151 s 12 default State agency information technology security reports 42.56.422; 2021 c 291 s 8; 2021 c 622 Security and information compiled in connection with the 43.105.450(7)(d) 291 s 1 Office of Cybersecurity

37 of 38 Schedule of Review Public Records Exemptions Accountability Committee Sunshine Committee Date Materials Proposed Legislation & Category RCW Description Recommendation Enacted Presented Related Bills Personal information; Confidential party information forms accompanying 623 7.105.105(2) 2021 c 215 s 14 Crime Victims petitions for civil protection orders Trade secrets and proprietary information submitted Financial, Commercial, and by bidders, offerors, and contractors in connection 624 Proprietary Information; 36.32.234(7)(a) 2021 c 224 s 1 with electric ferry design and procurement, when Trade Secret requested and county concurs State Government; Electric ferry procurement documents, until 625 Financial, Commercial, and 36.32.234(7)(b) 2021 c 244 s 1 notification of finalist made or selection terminated Proprietary Information Personal Information; Information and records containing personal and 626 Motor Vehicle/Driver 46.22.010 identity information obtained by the Department of 2021 c 93 s 4 Records Licensing to administer driver and vehicle records During public health emergencies, certain personally Personal Information; 627 49.17.062(3) identifiable information regarding employees of the 2021 c 252 s 2 Health Care Department of Labor and Industries Records obtained or created relating to partnership 628 Health Care 70.14.065(4) agreements for production, distributing, and 2021 c 274 s 1 purchasing generic prescription drugs and insulin Communications, records, and files of the Office of 71.40.140; 2021 c 202 s 12; 2021 c 629 Health Care Behavioral Health Consumer Advocacy, and related 71.40.120(3) 202 s 14 organizations and advocates Reports and information submitted to the Department 630 State Government 70A.245.030(2) of Ecology by producers of certain plastic products, 2021 c 313 s 4 when requested The report detailing the Office of Cybersecurity's 631 Security; State Government 42.56.422 independent security assessment of state agency 2021 information technology security program audits Information relating to individual claim resolution Industrial Insurance; 632 51.04.063(13) settlement agreements submitted to the board of 2014 Injured Worker industrial insurance appeals

*For subsequent legislative history, see statutes online on the state legislative's website; see also Code Reviser's Office list ("Exemptions from Public Records Disclosure and Confidential Records") available on Sunshine Committee web page.

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