Snohomish County v. Public Utility District No. 1

105 Wash. 2d 606

• Court: Washington Supreme Court
• Decided: April 10, 1986
• Docket: Nos. 50589-6, 50728-7
• Status: Published

Opinions

Pearson, J.

The Superior Court for Snohomish County entered orders prohibiting the disclosure of information contained in the records of Public Utility District No. 1 of Snohomish County, thereby raising issues with respect to the breadth of this State's public disclosure act, RCW 42.17. The orders were entered in two cases which are consolidated here on appeal.

In the first case, Gordon Rosier, a political opponent of members of the District's board of commissioners, requested the names and addresses of the District's approximately 156,000 customers. He intended to send political mailings to the customers in connection with an upcoming District commissioner election. The District thereupon filed an action in the superior court and brought Mr. Rosier into court by show cause order. Based on affidavits filed in that case, the trial court enjoined the District from disclosing its customers' names and addresses to Mr. Rosier. A principal factual reason underlying the court's injunction was

a very real prospect that such disclosures could have life threatening implications for a substantial number of citizens in the community such as law enforcement officials and victims of domestic abuse, who have legitimate reasons for wanting to maintain their anonymity.

The second case arose as a consequence of the first. The District historically had given Snohomish County officials the names, addresses and electrical usage of particular customers when requested by such officials for purposes related to their official duties and responsibilities. Following entry of the injunction in the Rosier case, however, the District informed these officials that the District would no longer provide them with such information.

An action thereupon was commenced by Snohomish County, its sheriff, treasurer and assessor, and also by the City of Everett and its chief of police (herein public officials). The District was brought into court by a show cause order. The trial court also decided this case based upon affidavits filed by the parties. For reasons similar to those in the first case, the Superior Court again ruled in favor of the District and ordered the District to not release the information in question to the public officials.

Both Mr. Rosier and the public officials appealed. We granted direct review. The consolidated appeals raise one principal issue: Does RCW 42.17 require disclosure of the information requested of the District or is that information subject to any personal privacy interest?

We hold that the public disclosure act requires the District to provide the information requested, and that the trial court erred in entering orders prohibiting disclosure. In so holding, however, we recognize that the act provides a general exemption for personal privacy. Furthermore, we recognize that a privacy interest might exist in lists of names and addresses, depending upon the context in which the lists are requested. Under the rule set forth below, the court recognizes a privacy interest in any information released by an agency which is matched specifically to a particular individual's name, and which reveals a unique fact about that individual. Under this rule, the personal privacy interest in that information must then be weighed against the public interest in disclosure to determine whether that data must be exempted from disclosure.

I

A necessary threshold question in this case is whether the public disclosure law provides a general personal privacy exemption when disclosure of the pertinent records would involve an unreasonable invasion of privacy. We hold that RCW 42.17 clearly provides such an exemption. This conclusion is consistent with the overall statutory scheme and language of RCW 42.17.

This court has declared that RCW 42.17 mandates broad disclosure of public records and must be construed liberally by the courts. The burden of proof rests on the agency to prove that it does not have the duty to disclose. Review of an agency's refusal to disclose a public record is de novo. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). Nonetheless, the statute does not mandate unconditional disclosure. The statute indicates in various sections that the personal privacy interests of individuals must be considered and accommodated by exemption from public disclosure.

First, in its declaration of policy section, RCW 42.17-.010(11), the statute specifically recognizes individual privacy interests as a factor the releasing agency must consider. Further, RCW 42.17.310(1) specifically exempts certain records from disclosure. These specified exemptions are designed to protect individual privacy or important governmental interests. The records included in these exemptions are those which are particularly sensitive and would most likely involve a privacy interest, e.g., welfare rolls, prisoner files, employment files, and other obviously private information. These enumerated exemptions, however, are not absolute; if an agency can delete the information which would violate an individual's privacy, then the agency must disclose the exempted records. RCW 42.17-.310(2). This statutory scheme suggests that the Legislature believes privacy interests are the only interests sufficiently important to block disclosure of such records.

RCW 42.17.310(2) also distinguishes between "statistical information not descriptive of any readily identifiable person" and information which does describe identifiable persons. The statute then requires disclosure only of that information which does not readily identify a particular person. This provision suggests that information which specifically identifies a particular person must receive special consideration and may not be disclosed in every case.

The statute also requires the releasing agency to delete identifying information which would result in an unreasonable invasion of personal privacy before disclosing any public record.

Each agency . . . shall make available for public inspection and copying all public records. To the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available . . . any public record . . .

(Italics ours.) RCW 42.17.260(1). The Legislature superimposed this section over the exemptions provided for particularly sensitive information found in RCW 42.17.310(1). Thus, the statute ensures that agencies consider and protect personal privacy in every request for information, not merely in requests for specified highly sensitive information.

Finally, the basic purpose of the public disclosure act 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. See RCW 42.17.010(l)-(6), (10) and (11). As a practical matter, most courts hold that the release of information under such public disclosure acts is not conditioned specifically upon the use to which the information will be put. See Environmental Protec. Agency v. Mink, 410 U.S. 73, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973); Cooper v. Department of the Navy, 558 F.2d 274 (5th Cir. 1977).

Nonetheless, in determining whether the act should exempt particular information from disclosure for privacy protection, this court acknowledges that the basic purpose and policy of RCW 42.17 is to allow public scrutiny of government, rather than to promote scrutiny of particular individuals who are unrelated to any governmental operation. Because the purpose and policy of our law does not include scrutiny of private individuals, the general personal privacy exemption we find inherent in the act comports with the expressed purposes and policies of the act. In short, we are satisfied that the act supports the general privacy exemption urged by the District.

II

Generally courts have held that disclosure of lists of names and addresses does not involve a privacy interest. See Annot., Publication of Address as Well as Name of Person as Invasion of Privacy, 84 A.L.R.3d 1159 (1978); Annot., What Constitutes Personal Matters Exempt From Disclosure by Invasion of Privacy Exemption Under State Freedom of Information Act, 26 A.L.R.4th 666 (1983). This court agrees that such is the case in most instances.

In some instances, however, the very fact that a person's name appears on a particular list identifies that individual with a particular classification of individuals. Identification as a member of that group may have social implications. In these special cases, the release of names and addresses actually becomes the release of names, addresses, and an additional piece of information. Disclosure of this additional information may constitute an unreasonable invasion of privacy if it identifies particular, identifiable persons as somehow unique from most of society.

Accordingly, we believe that whenever someone requests a list of names and addresses, the releasing agency must examine the context in which those names and addresses are found. If the release of the names and addresses also reveals that those named are members of a particular classification of persons, and membership in that group has social implications, then a personal privacy interest inheres in the data. The releasing agency must then analyze the propriety of disclosure as though the requesting party had requested specific information matched to a particular person's name. In so doing, the releasing agency must weigh the privacy interest against the public interest in disclosure to determine whether the act exempts the information from disclosure.¹

Applying this analysis to the list of names and addresses requested by Mr. Rosier, we first identify the specific context in which these names are found. The context is that of public utility customers who use electricity in their homes. Accordingly, the additional data revealed about those on the list does not place the named persons into an identifiable classification with inherent social implications. Because the information in no way singles out any particular person as being unique from most of society, in this context we hold that no privacy interest attaches to the list of names and addresses. Therefore, the trial court erred in failing to order the District to disclose it.

Ill

The rule we promulgate recognizes that a privacy interest exists when an agency releases information specifically identified to a particular individual's name. As shown above, an agency might reveal that information inadvertently, as when a list of names and addresses also reveals further information about each individual on the list merely because those persons' names appear on that particular list. On the other hand, a request for disclosure might come in the form of a request for specific information about a particular named person, as when the police request electrical usage data on a named individual.

The rule announced in this case refines somewhat the rule enunciated in Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). In Hearst, this court held that a privacy interest exists in information if its release would be highly offensive to a reasonable person and of no legitimate concern to the public. Hearst, at 135-36. Under the rule announced in this case, however, the information sought need not be highly offensive in order to establish a privacy interest. Rather, we believe the better rule recognizes that an individual has a privacy interest whenever information which reveals unique facts about those named is linked to an identifiable individual.

Under this rule, we incorporate Hearst's "highly offensive" test into the second part of the Hearst balancing test under which an agency must determine whether an individual's privacy interest outweighs the public's interest in broad disclosure. Whenever the information in which an individual has a privacy interest is not "highly offensive", the public interest in disclosure outweighs the individual's privacy interest. On the other hand, if the release of the information is highly offensive, the private interest may outweigh the public interest.

Thus, the test announced in this case complements the analysis begun in Hearst. There, the information requested was matched specifically to particular named individuals. The court determined that the information sought was not highly offensive and ended its analysis at that point. Conversely, under our new analysis, a privacy interest would attach to this information because it reveals unique facts about those named. Attention then would shift to the second step of the Hearst analysis under which the court must balance the public and private interests.

Under this analysis, we would reach the same result reached by the court in Hearst. The public interest in that case clearly outweighed the personal privacy interest of the individuals involved. The data sought related only to the value and assessment of parcels of property. The data was not sought for use against the identified individuals, but rather for determining whether the county assessor was acting contrary to the public interest by granting favors to his campaign contributors. The data was not highly offensive as it related to the individuals involved, yet it would be of great value to the public.

IV

Applying the rule announced today to the request for disclosure of electrical usage records of a particular person, we recognize the inherent privacy interest in this data; it is information specifically matched to a person's name which reveals unique facts about that person, i.e., suspiciously high power usage. We must then balance the identified privacy interest against the public interest in release of this data. See Hearst Corp. v. Hoppe, supra.

Although an agency generally may not inquire into the purpose for which the information is sought, see Hearst, at 137, we believe an exception' is warranted in cases such as this, when law enforcement officials seek specific data matched to a particular person's name. In this context, we hold that the police must have an articulable suspicion of illegal conduct by that individual to justify the disclosure of the private information. The public has a significant interest in disclosure of information leading to arrest for illegal conduct; but the public in general, as well as any particular individual, has a privacy interest in preventing general "fishing expeditions" by governmental authorities. Even if the information sought is not highly offensive when viewed in the abstract, its disclosure in the context of a general review of an individual's power usage records is highly offensive. Thus, we believe the governmental authorities should articulate a specific suspicion of particular illegal conduct, rather than a mere "reason" for the request, whenever they seek disclosure of particular information matched to a specific individual.

In the present case, the privacy interest in the power usage records is minimal; the information is fairly innocuous and reasonable persons would not be highly offended by its release. We admit that its release to police officers would "highly offend" anyone who engages in illegal activity, e.g., growing marijuana; but this person is not the appropriate measure of a "reasonable person". If the police have an articulable suspicion of illegal acts, the release of the records leads to effective law enforcement, thereby furthering the public interest. Accordingly, the electrical usage information should be released in this case.

We recognize the possibility that the police may falsely claim that a secret informant exists, and that the informant gave the police sufficient information about a particular person to raise an "articulable suspicion" of illegal acts. The individual's remedy for such police misconduct was articulated by this court in State v. Casal, 103 Wn.2d 812, 699 P.2d 1234 (1985). A defendant may challenge the existence of a secret informant or the truthfulness of the police officer's affidavit in support of the search warrant through an in camera hearing under certain circumstances. Thus, the articulable suspicion test adequately protects against general "fishing expeditions" not based on any articulable suspicion.

V

The remaining issues raised in this appeal do not merit prolonged discussion.

Only one of the eight appellate briefs filed in these cases refers to the privacy section of our state constitution, Const, art. 1, § 7. As far as the record before us reflects, the parties neither raised nor discussed this issue at the trial court level in either case. As expressed by the Eighth Circuit, "naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion." United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970). See also Null v. Grandview, 669 S.W.2d 78, 81 (Mo. Ct. App. 1984); State v. Perbix, 349 N.W.2d 403, 404 (N.D. 1984). The constitutional argument made in the cases before us does not merit our consideration, and we therefore decline to consider it.

We reject the District's argument that we are bound by the findings of fact entered by the trial court in these cases. The record of the proceeding below consists entirely of written and graphic material and contains no trial court assessment of witnesses' credibility or competency. Because the record on appeal is identical to that considered by the trial court, we are not bound by the trial court's findings of fact. Smith v. Skagit Cy., 75 Wn.2d 715, 718-19, 453 P.2d 832 (1969); Eiden v. Snohomish Cy. Civil Serv. Comm'n, 13 Wn. App. 32, 37, 533 P.2d 426 (1975).

Nor do we find support for Mr. Rosier's arguments that the language of the show cause order citing him into court improperly shifted the burden of proof on the disclosure issue to him. The agency bears the burden of proving that it does not have the duty to disclose. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Mr. Rosier clearly raised the burden of proof issue in both his responsive pleading and trial brief. Nothing in the record suggests that the trial court did not consider that the District had the burden of proof on the disclosure issue.

As to attorney fees and penalties, the public disclosure act provides:

Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not to exceed twenty-five dollars for each day that he was denied the right to inspect or copy said public record.

RCW 42.17.340(3).

Pursuant to the foregoing statute, Mr. Rosier and the public officials sought attorney fees and costs in the trial court. Because they have prevailed on appeal, on remand the trial court should award them their reasonable attorney fees and costs previously incurred in the trial court. On appeal, only Mr. Rosier complied with RAP 18.1. Based on his showing to this court, we hereby award Mr. Rosier $5,000 as reasonable attorney fees on appeal in addition to taxable costs.

Mr. Rosier and the public officials ask for the maximum $25 per day penalty, which also is authorized by the foregoing statute. The District initiated the action against Mr. Rosier in order to obtain judicial guidance with respect to its duty to disclose. It claimed, and it is a claim which does not appear unreasonable from the record, that it faced litigation whether it granted Mr. Rosier's request or denied it. Furthermore, after the trial court decision in the Rosier case the District clearly did not act unreasonably by denying the public officials' requests, thus triggering the action brought by the public officials. In both cases, the trial court rather than the District decided that the District should not disclose the records sought. Under these circumstances, a penalty is not warranted. See Hearst, at 139-40. We exercise our discretion in the matter by denying Mr. Rosier and the public officials any penalty payments in connection with either the trial or appellate proceedings.

We reverse and remand with directions to enter disclosure orders in conformity with this opinion.

Dolliver, C.J., and Utter, Brachtenbach, Callow, and Goodloe, JJ., concur.

1 Although this burden might seem onerous, the agency is best suited to determine whether the facts warrant an exemption. Furthermore, the agency can ease this burden by employing counsel to generate operating guidelines for agency employees to ensure compliance with the requirements set forth in this opinion.