Jane Doe v. Washington State Department Of Fish & Wildlife

• Court: Court of Appeals of Washington
• Decided: October 16, 2018
• Docket: 49186-9
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

October 16, 2018 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II JANE DOE No. 49186-9-II

Appellant,

v.

WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION FISH AND WILDLIFE, and DAKOTA LOOMIS,

Respondents.

LEE, J. — Jane Doe appeals the superior court’s permanent injunction order entered as a

part of her suit to enjoin the Washington State Department of Fish and Wildlife (the Department)

from disclosing investigative records in response to a Public Records Act (PRA) request without

first redacting all references to her identity. Doe argues that the superior court erred when it (1)

failed to order the redaction of all references to her identity in the investigative records, (2) failed

to apply the permanent injunction to all future PRA requests, and (3) denied her request for

attorney fees. We affirm.

FACTS

In early 2015, the Department conducted an investigation into cross-allegations of sexual

harassment between two employees at the Department.

The Department later received a PRA request for all “e-mails, memos, personnel files,

notes, reports, or other disclosable documents pertaining to human resources investigations filed

against, or filed by, or prominently including” the two investigated employees. Clerk’s Papers

(CP) at 65. The Department identified records responsive to the request, including the interviews, No. 49186-9-II

notes, report, letters, and other documents related to the investigation. These documents contained,

in addition to other information, allegations regarding Doe’s sexual conduct.

The Department informed Doe of the PRA request and that she was identified in the

responsive records. The Department provided her with a copy of the records with redactions

identified by the Department. Doe objected to the release of the records without redacting all

information that identified her by name, relationship, or association. Doe provided the Department

with proposed redactions, but the Department declined to make Doe’s proposed redactions.

Doe filed suit for a preliminary and permanent injunction enjoining the Department from

disclosing the responsive records without her proposed redactions. The Department opposed the

injunction arguing that no privacy interest would be violated if the records were released with the

redactions that it had already made. The superior court granted a preliminary injunction.

The superior court ordered an in camera review of the responsive records. Doe submitted

her proposed redactions for the superior court’s in camera review. Doe requested that the superior

court enter a permanent injunction that prohibited the Department from disclosing any responsive

records without first redacting every reference to Doe by name, relationship, or association. Doe

argued that “[h]er name and relationship, in the context of these records, connect[ed] [her] to the

conduct of those subjects and to unsubstantiated allegations of private sexual conduct with no

connection to her public employment.” CP at 289.

After conducting an in camera review, the superior court entered a permanent injunction.

The superior court accepted some of Doe’s proposed redactions and rejected others. The superior

court found that the unredacted references to Doe did not connect her to alleged sexual conduct,

and, therefore, did not implicate her right to privacy.

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The superior court’s written order stated that the Department was “permanently enjoined

from disclosing any records corresponding to the 141 pages identified herein without first making

the redactions described herein . . . .” CP at 330. However, the superior court refused to expressly

apply the permanent injunction to future cases, instead leaving it to the parties to determine the

effect of the permanent injunction in future cases.

Doe also requested attorney fees, arguing that the Department’s defense was frivolous. The

superior court found that the Department’s defense was not frivolous because there were legal and

factual bases for the defenses advanced. The superior court denied Doe’s request for attorney fees.

Doe appeals the superior court’s permanent injunction order.

ANALYSIS

A. REDACTION OF RECORDS

Doe argues that the superior court erred when it failed to order the redaction of all

references to Doe’s identity in the investigative records. We disagree.

1. Legal Principles

Although the Department argues that we should review the superior court’s permanent

injunction for an abuse of discretion, we review a decision to grant or deny an injunction under the

PRA de novo. Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 791, 418 P.3d 102 (2018). Whether to

grant injunctive relief requires a two-step inquiry:

First, the court must determine whether the records are exempt under the PRA or an “other statute” that provides an exemption in the individual case. Second, it must determine whether the PRA injunction standard is met.

Lyft, 190 Wn.2d at 790. “ ‘If one of the PRA’s exemptions applies, a court can enjoin the release

of a public record only if disclosure would clearly not be in the public interest and would

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substantially and irreparably damage any person, or . . . vital governmental functions.’ ” Lyft, 190

Wn.2d at 791(alteration in original) (internal quotation marks omitted) (quoting Morgan v. City of

Federal Way, 166 Wn.2d 747, 756-57, 213 P.3d 596 (2009)).

The PRA requires agencies to “make available for public inspection and copying all public

records,” unless the record falls within a specific exemption of the PRA or other statute. RCW

42.56.070(1); Resident Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 431, 327 P.3d 600

(2013). The exemptions are narrowly construed. Resident Action Council, 177 Wn.2d at 431. “If

a portion of a public record is exempt, that portion should be redacted and the remainder

disclosed.” Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 209, 189

P.3d 139 (2008). The party seeking to prevent disclosure has the burden to prove an exemption

applies. Robbins, Geller, Rudman & Dowd, LLP v. Att’y Gen., 179 Wn. App. 711, 719, 328 P.3d

905 (2014).

The PRA includes an exemption for “[p]ersonal information in files maintained for

employees, appointees, or elected officials of any public agency to the extent that disclosure would

violate their right to privacy[.]” RCW 42.56.230(3). In order to qualify for this exemption, the

information must (1) contain personal information, (2) the person must have a privacy interest in

that information, and (3) disclosure of that personal information must violate their right to privacy.

Predisik v. Spokane Sch. Dist. No. 81, 182 Wn.2d 896, 903-904, 346 P.3d 737 (2015).

A person’s identity is considered personal information because it relates to a particular

person. Predisik, 182 Wn.2d at 904. And a person has a privacy interest when information that

reveals unique facts about those named is linked to an identifiable person. Tiberino v. Spokane

County, 103 Wn. App. 680, 689, 13 P.3d 1104 (2000). A person also has a privacy interest in

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intimate matters concerning his or her private life, such as sexual relations and details of the

person’s life in the home. Bellevue John Does, 164 Wn.2d at 212-14.

A person’s right to privacy is violated if “disclosure of information about the person: (1)

Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the

public.” RCW 42.56.050. “[W]hether disclosure of particular information would be highly

offensive to a reasonable person must be determined on a case by case basis.” West v. Port of

Olympia, 183 Wn. App. 306, 315, 333 P.3d 488 (2014). Disclosure of information containing

intimate details of a person’s personal and private life would be highly offensive to a reasonable

person. See Tiberino, 103 Wn. App. 689-90. The public has no legitimate concern in such

information when the information is unrelated to governmental operation. See Tiberino, 103 Wn.

App. 689-90.1

2. Privacy Interest

The parties do not dispute that the responsive records’ references to Doe by name,

relationship, or association are personal information within public records. However, they dispute

whether every reference implicates Doe’s privacy interest and is subject to redaction.

Here, not every reference in the responsive records to Doe’s identity—by name,

relationship, or association—concerns intimate matters of Doe’s private life, such as sexual

1 Doe argues that the superior court erred by failing to review each redaction in the context of the record. However, contrary to Doe’s argument, the superior court stated, “ultimately my conclusions are where Miss Doe’s name and/or relationship is found on records where it is connected to those sorts of activities, given the context of the records and all of the background I’ve already provided, I’m finding that her right of privacy is properly invoked to protect those records.” Verbatim Report of Proceedings (Apr. 29, 2016) at 31 (emphasis added). Therefore, the record does not support Doe’s claim.

5 No. 49186-9-II

relations or details of her life in the home. Our review of the proposed redactions the superior

court rejected shows that many of the references to Doe’s identity do not concern her private life

and merely disclose details about everyday life. These references do not connect Doe to alleged

sexual conduct, concern intimate matters of her private life, or reveal unique facts about Doe.

Therefore, these references do not implicate Doe’s right to privacy and the superior court did not

err in refusing to include them in the injunction.

Other references do not reveal information about Doe’s private life but about others’ lives.

Such references also do not connect Doe to alleged sexual conduct or reveal unique facts about

Doe. As a result, these references also do not implicate Doe’s privacy interest.

Doe claims that a person reviewing the records could connect her to the sexual conduct

through references to her identity that are not directly connected to the sexual conduct. This

argument is unpersuasive.

Although a requester may potentially figure out the identity of a person, that does not

negate the public’s interest in a document. See Koenig v. City of Des Moines, 158 Wn.2d 173,

187, 142 P.3d 162 (2006) (“The fact a requester may potentially connect the details of a crime to

a specific victim by referencing sources other than the requested documents does not render the

public's interest in information regarding the operation of the criminal justice system illegitimate

or unreasonable.”); see also Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398,

414, 259 P.3d 190 (2011) (“An 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.”); SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servcs., 193 Wn. App. 377, 410-

11, 377 P.3d 214 (2016) (holding that information is not exempt because its disclosure could lead

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to the discovery of exempt information). The emphasis is on the content of the records. Although

a person may be able to figure out Doe’s identity from references to her in the records that do not

implicate her privacy interest, that does not mean that such references must be redacted as the

contents of those records do not implicate Doe’s privacy interest. Thus, the superior court did not

err when it did not require these references be redacted.

B. PERMANENT INJUNCTION

Doe asks us to hold that the superior court erred when it failed to apply the permanent

injunction to all future public records requests. We decline to do so.

Courts must ensure they are “rendering a final judgment on an actual dispute between

opposing parties with a genuine stake in the resolution.” To-Ro Trade Shows v. Collins, 144 Wn.2d

403, 411, 27 P.3d 1149 (2001). If the court is not doing so, we step “ ‘into the prohibited area of

advisory opinions.’ ” To-Ro Trade Shows, 144 Wn.2d at 416 (quoting Diversified Indus.

Devereaux. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973)).

Here, determining whether the permanent injunction applies to every conceivable future

request for the identified records would render final judgment on a dispute, which does not yet

exist, between parties who have not been identified. Ames v. Pierce County, 194 Wn. App. 93,

114-15, 374 P.3d 228 (2016). Moreover, what is highly offensive may change over time and what

is of legitimate interest to the public may change depending on the circumstances. See RCW

42.56.050. Accordingly, we decline Doe’s request to deliver a prohibited advisory opinion in this

case.

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C. ATTORNEY FEES

Doe argues that the superior court abused its discretion when it denied Doe’s request for

attorney fees. Doe also requests attorney fees on appeal arguing that the Department’s defense

was frivolous. We disagree, and we decline to award Doe attorney fees on appeal.

We review a superior court’s decision on attorney fees for an abuse of discretion. In re

Recall of Piper, 184 Wn.2d 780, 786, 364 P.3d 113 (2015). Under RCW 4.84.185, the superior

court may award reasonable expenses, including attorney fees, to the prevailing party in any civil

action if the action or defense to such action was frivolous. “An appeal is frivolous if ‘no debatable

issues are presented upon which reasonable minds might differ, i.e., it is devoid of merit that no

reasonable possibility of reversal exists.’ ” Hartford Ins. Co. v. Ohio Cas. Ins. Co., 145 Wn. App.

765, 780, 189 P.3d 195 (2008) (internal quotation marks omitted) (quoting Olson v. City of

Bellevue, 93 Wn. App. 154, 165, 968 P. 2d 894, review denied, 137 Wn.2d 1034 (1998)). The

action or defense, in its entirety, must be frivolous and advanced without reasonable cause before

an award of attorney fees may be made. Biggs v. Vail, 119 Wn.2d 129, 133, 830 P.2d 350 (1992).

Here, the superior court had no basis to award attorney fees to Doe under RCW 4.84.185

because the Department’s defense was not entirely frivolous and advanced without reasonable

cause. Doe had requested that every reference to her by name, relationship, or association should

be redacted before the responsive records were disclosed. But the Department argued, and the

superior court properly agreed, that not every reference connected her to alleged sexual conduct.

Thus, the Department’s defense was not entirely frivolous. Therefore, the superior court did not

abuse its discretion by denying Doe’s request for attorney fees under RCW 4.84.185.

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And, under RAP 18.1, we will only award a party attorney fees on appeal “[i]f applicable

law grants to a party the right to recover reasonable attorney fees or expenses . . . .” But because

the Department’s defense was not frivolous, either at the superior court or on appeal, Doe is not

entitled to attorney fees under the applicable law, RCW 4.84.185. Accordingly, we deny Doe’s

request for attorney fees on appeal.

We affirm.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

Lee, J. We concur:

Maxa, C.J.

Melnick, J.