This opinion was
filed for record
IN CLERKS OFFICE
tIJPISC COURT,StnE OF mSHSieTON
at on /1<^'3L ^
DATE 3 1 2019 i
Susan L. Carlson
'^(^Xa )\aaax\^' Supreme Court Clerk
GtHeFMSriGE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL
925, a labor organization,
Petitioner, NO. 96578-1
V.
STATE OF WASHINGTON, EN BANC
DEPARTMENT OF EARLY
LEARNING,a state agency, and
EVERGREEN FREEDOM
FOUNDATION,a nonprofit corporation. Filed 3 1 2019
Respondents.
STEPHENS, J.—^Respondent Evergreen Freedom Foundation (Foundation)
filed a Public Records Act(PRA), chapter 42.56 RCW, request for the names and
addresses of individuals who provide subsidized childcare under Washington's
Working Connections Child Care program(WCCC). After the Foimdation filed its
request but before any records were released, voters passed an initiative exempting
those names and addresses from PRA coverage and prohibiting agencies from
SEIU V. Evergreen Freedom Found, et al, 96578-1
releasing them. The question presented in this case is whether that initiative bars
release even though it did not take effect until after the Foundation made its public
records request. We hold that the answer is yes.
FACTS
The Department of Early Learning (Department) administers the WCCC,
which subsidizes childcare for low income families. The subsidies fund childcare
in both commercial and private residential settings, but this case involves only the
latter. Providers in private residential settings are called "family child care
providers" and may be either licensed or license exempt. Clerk's Papers (CP) at
904. State law defines family childcare providers as public employees for the
purposes of collective bargaining, RCW 41.56.028(1), (3), and petitioner Service
Employees International Union Local 925(SEIU 925)represents these workers.
On November 2, 2016, the Foundation submitted a PRA request to the
Department seeking the following:
1. The first name, last name, work mailing address, and work email
address of all licensed family child care providers, as defined by
RCW 41.56.030(7).
2. The first name, last name, work mailing address, and work email
address ofall license-exempt family child care providers, as defined
by RCW 41.56.030(7).
CP at 909.
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SEIUV. Evergreen Freedom Found, et al, 96578-1
The Department informed SEIU 925 that, in the absence of a court injunction,
it would release all the requested information to the Foundation on November 22,
2016. On November 8,2016, Washington voters approved Initiative 1501 (1-1501),
which "prohibit[s] the release of certain public records that could facilitate identity
theft and other financial crimes against seniors and vulnerable individuals." Id. at
299. Two of the initiative's provisions address the release of records responsive to
the Foundation's PRA request. One provision, now codified at ROW 43.17.410(1),
provides that"neither the state nor any ofits agencies shall release sensitive personal
information of vulnerable individuals or sensitive personal information of in-home
caregivers for vulnerable populations, as those terms are defined in ROW
42.56.640." The other, now codified at RCW 42.56.640(1) in the PRA, provides
that "[sjensitive personal information of vulnerable individuals and sensitive
personal information of in-home caregivers for vulnerable populations is exempt
from inspection and copying under this chapter." The new law defines "'[i]n-home
caregivers for vulnerable populations'" to include WCCC "family child care
providers." RCW 42.56.640(2)(a). It defines '"[sjensitive personal information'"
as "names, addresses, GPS [global positioning system] coordinates, telephone
numbers, email addresses, social security numbers, driver's license numbers, or
other personally identifying information." RCW 42.56.640(2)(b)(second alteration
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SEIUV. Evergreen Freedom Found, et ah, 96578-1
in original). The initiative took effect on December 8, 2016. Laws OF 2017, ch. 4
(1-1501).
Procedural History
Three weeks before the new law took effect, SEIU 925 filed a complaint for
declaratory and injunctive relief barring the Department from releasing the records.
It sought a temporary restraining order and a preliminary injunction. The parties
agreed to extend any deadline for release until after the court could rule on the
motion for a preliminary injunction. The trial court issued its ruling December 9,
2016, one day after 1-1501 took effect. It denied injunctive relief but ordered the
Department to delay release so SEIU 925 could appeal the ruling. Division Two
granted the Department's motion for an emergency injunction, pending the appellate
court's final decision. That court affirmed on September 18,2018. Serv. Emps.Int'l
Union Local 925 v. Dep't ofEarly Learning, No. 49726-3-II(Wash. Ct. App. Sept.
18, 2018)(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049726-3-
II%20Unpublished%200pinion.pdf.
In the Court of Appeals, SEIU 925 argued that the trial court erred by failing
to apply 1-1501 (specifically, the provisions later codified atRCW 43.17.410(1) and
RCW 42.56.640)because that law barred release ofthe requested records by the time
the court ruled on the motion for a preliminary injunction. Id. at 8. Division Two
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SEIUV. Evergreen Freedom Found, et al., 96578-1
rejected that argument, holding that the preliminary injunction was governed by the
law in effect at the time of the Foundation's request and that 1-1501 did not meet
any of the criteria necessary to establish retroactive application. Id. at 10-15. It
reasoned that, absent retroactivity, the law governing a disputed public records
request is always "the law in existence at the time the request was made." Id. at 13
(citing John Doe A v. Wash. State Patrol, 185 Wn.2d 363, 375 n.2, 374 P.3d 63
(2016)). Citing orAy Dragonslayer,Inc. v. Washington State Gambling Commission,
139 Wn. App. 433, 449, 161 P.3d 428 (2007), the court also concluded that a PRA
request creates a "vested right" that cannot be retroactively infringed. SEIU 925,
No.49726-3-II, slip op. at 12. Because it concluded that no PRA exemption applied,
the court did not consider whether SEIU 925 met the other requirements for
injunctive relief. See AmeriquestMortg. Co. v. Office ofAtt'y Gen., 177 Wn.2d467,
487, 300 P.3d 799 (2013) (nonagency party seeking injunction to prevent PRA
disclosure must show (1)record specifically pertains to that party,(2)an exemption
applies, and (3) disclosure is not in the public interest and would substantially and
irreparably harm that party or a vital government interest).
About six weeks after the Court of Appeals issued its decision in this case,
another Division Two panel reached the opposite conclusion in a case with identical
relevant facts. The court in Puget Sound Advocates for Retirement Action v.
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SEIU V. Evergreen Freedom Found, et al., 96578-1
Department ofSocial & Health Services(PSARA) held that, even if 1-1501 did not
apply retroactively, it still barred the release of records responsive to requests
already pending upon its enactment. No. 50430-8-II, slip op. at 7(Wash. Ct. App.
Oct. 30, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf
D2%2050430-8-II%20Unpublished%200pinion.pdf. The PSARA court reasoned
that the plain language of RCW 43.17.410(1) did not just exempt care providers'
personal information from the PRA but also, separately, prohibited the Department
from that information. Id. at 7-8. Therefore,the court concluded,the event
"trigger[ing]" the statute was not the PRA request but, instead, the Department's
"obligation under the PRA to actually release the information." Id. at 8. For this
conclusion, the PSARA court relied on In re Personal Restraint ofFlint, 174 Wn.2d
539, 547, 277 P.3d 657 (2012), a case addressing the "'triggering event'" for an
amendment to a statute governing community custody violations. PSARA, No.
50430-8-II, slip op. at 8.
We granted SEIU 925's petition for review. SEIU 925 v. Dep't of Early
Learning, 192 Wn.2d 1022(2019).
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SEIUV. Evergreen Freedom Found, et al, 96578-1
ANALYSIS
All the issues presented in this case are questions of statutory interpretation.
These are questions of law reviewed de novo. Williams v. Tilaye, 174 Wn.2d 57,
61,272 P.3d 235 (2012).
SEIU 925 argues that the Court of Appeals should have applied the analysis
used in PSARA, according to which ROW 43.17.410(1) (barring release) is
"triggered" by an agency's release ofrecords, not by a public records request. Under
that analysis,there is no question ofretroactivity because ROW 43.17.010(1)applies
prospectively to govern agency responses to PRA requests pending upon its
enactment. The Foundation counters with two arguments. First, it contends there
are good policy reasons to hold that, in any PRA dispute, the event "triggering" the
application of governing law is always the request records. Consistent with the
Court ofAppeals decision below,this rule would mean thatPRA disputes are always
governed by the law in effect at the time of the request, unless a subsequent
enactment is explicitly retroactive. The Foundation reasons that this rule will
prevent agencies from dragging their feet after receiving a request, in the hope that
new legislation will nullify their obligation to respond. It also contends that this
time-of-request rule is consistent with the PRA's broad disclosure mandate, at least
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SEIU V. Evergreen Freedom Found, et al, 96578-1
in this case. Second,the Foundation argues that a PRA request creates a vested right,
which the legislature may not retroactively infnnge in any event.
If a PRA request creates a "vested right" to access responsive records, there
is no need to determine what event triggers RCW 43.17.410(1) or to consider any
other question of statutory interpretation in this case. Because no law may
retroactively infringe a "vested right," Caritas Servs., Inc. v. Dep't ofSac. & Health
Servs., 123 Wn.2d 391, 413-15, 869 P.2d 28 (1994), affirming the Court of Appeals
on that point would be dispositive. Therefore, we begin our analysis by explaining
why a PRA request does not create a vested right. We then explain why the
provisions of 1-1501 relevant in this case are triggered by the agency's release of
records, making them applicable when the trial court ruled on the preliminary
injunction.
I. A PRA Request Does Not Create a Vested Right To Examine
Responsive Records
The vested right doctrine is a constitutional protection for property rights.
Vashon Island Comm.for Self-Gov't v. Boundary Review Ed., 127 Wn.2d 759, 768,
903 P.2d 953 (1995). It protects private citizens against legislative takings and
impairment of contracts. See Gillis v. King County, 42 Wn.2d 373, 376, 255 P.2d
546 (1953). Accordingly, even if a new law is made expressly retroactive, it will
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SEIUV. Evergreen Freedom Found, et al, 96578-1
not be given retroactive effect if this infringes a true vested right. Caritas, 123
Wn.2d at 413-15. A retroactive amendment does not infringe a vested right merely
because it disappoints expectations. See Omega Nat'I Ins. Co. v. Marquardt, 115
Wn.2d 416, 433, 799 P.2d 235 (1990) ("A party has no vested right in the
continuation of existing statutory law."). On the contrary,"[a] vested right involves
'more than ... a mere expectation'" and requires an actual "'title, legal or equitable,
to the present or future enjoyment of property'." In re F.D. Processing, Inc., 119
Wn.2d 452, 463, 832 P.2d 1303 (1992) (second alteration in original) (quoting
Miebach v. Colasurdo, 102 Wn.2d 170, 181, 685 P.2d 1074 (1984)).
Consistent with this standard, this court has found a vested right to a method
of Medicaid reimbursement for land already purchased, Caritas, 123 Wn.2d at 413-
15, and to a perfected security interest in a debtor's inventory and accounts, F.D.
Processing, 119 Wn.2d at 463. In contrast, we have not found a vested right to the
continued existence of a zoning scheme under which a developer began, but did not
complete, an application for a building permit. Abbey Rd. Grp., LLC v. City of
BonneyLake, 167 Wn.2d 242, 247-48, 254-61,218 P.3d 180(2009)(lead opinion);
id. at 261-63 (Madsen, J., concurring), or to the ability to send one's child to a
particular public school. Citizens Against Mandatory Bussing v. Palmason, 80
Wn.2d 445,452,495 P.2d 657(1972).
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SEIU V. Evergreen Freedom Found, et al,96578-1
The Court ofAppeals opinion in this case provides no analysis explaining why
a PRA request creates a vested right. Nor does Dragonslayer,the sole authority that
court cited for this point. Each opinion simply states in conclusory fashion that an
amendment creating a new exemption from PRA requirements cannot be "remedial"
(and therefore presumptively retroactive) because it affects a vested right(to inspect
or copy records). SEIU925,No. 49726-3-II, slip op. at 12; Dragonslayer, 139 Wn.
App. at 449. This is incorrect. It is true that an amendment will not be deemed
"remedial" if it affects a substantive or a vested right, F.D. Processing, 119 Wn.2d
at 462-63, and there is no dispute in this case that new exemptions to the PRA affect
the substantive right to access government records. But a PRA request is nothing
like the activities this court has held to create constitutionally vested rights. To the
extent Dragonslayer and the Court of Appeals opinion in this case hold otherwise,
they are overruled.
II. RCW 43.17.410(1)Is Triggered by the Agency's Release of Records
Rather Than the Original Request; It Therefore Applied When the
Trial Court Ruled on the Preliminary Injunction
As noted, the Court of Appeals in this case purported to recognize a general
rule, applicable to any "statute affecting the disclosure of records." SEIU 925, No.
49726-3-II, slip op. at 13. Under this rule—^which the Court of Appeals derived
solely from footnoted dicta in a distinguishable case—^the law governing a pending
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SEIUV. Evergreen Freedom Found, et al, 96578-1
public records request is always "the law in existence at the time the request was
made." Id. at 13 (citing John Doe A, 185 Wn.2d at 375 n.2). This was error.
The "triggering event" analysis is fundamentally an inquiry into legislative
intent. See In re Estate ofHaviland, 177 Wn.2d 68,75-76, 301 P.3d 31 (2013). The
John Doe A dicta aside, nothing in the PRA itself indicates any intent to adopt a
blanket time-of-request rule.^ Nor can the courts impose one. Because a PRA
request does not create a vested right, it is not entitled to any special judicial
protection against changes in the law—^the legislative branch has the right to frustrate
a pending PRA request. That being the case, a court cannot preemptively announce
a rule that PRA requests are always governed by the law in effect when they were
filed. Instead, we must proceed on a case-by-case basis to determine the intent
underlying any PRA-related amendment or other new law.
To determine what event triggers the application of new law, courts look to
the subject matter regulated by the statute in question and to the statute's plain
language, with the goal of effectuating the legislature's (or, as here, voters') intent.
Id.-, Utter ex rel. State v. Bldg. Indus. Ass'n of Wash, 182 Wn.2d 398, 410 n.3, 341
^ While the Foundation is correct that courts must construe the PRA in favor of
broad disclosure, RCW 42.56.030, that rule does not support the imposition of a time-of-
request rule. Because subsequent events may well make records more accessible than they
were at the time of a request, such a rule is just as likely to limit disclosures as to broaden
them.
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SEIU V. Evergreen Freedom Found, et al,96578-1
P.3d 953 (2015) (courts interpret voter initiatives according to general rules of
statutory construction (citing City ofSpokane v. Taxpayers of City ofSpokane, 111
Wn.2d 91, 97, 758 P.2d 480 (1988))). Because it tends to implicate retroactivity
concerns, any triggering event analysis must address these indicia of intent in light
of relevant constitutional interests (e.g., ex post facto clause protections and vested
rights), Flint, 174 Wn.2d at 547-48, and "[ejlementary considerations of fairness,"
In re Estate ofBurns, 131 Wn.2d 104, 110, 928 P.2d 1094(1997){citing Landgraf
V. USIFilm Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 128 L. Ed. 2d 229(1994));
cf. State V. Jefferson, 192 Wn.2d 225, 246-49, 429 P.3d 467 (2018) (GR 37,
governing Batson^ challenges, is triggered by voir dire rather than direct appeal
because the new rule implicates substantial constitutional rights and thus attaches
new legal consequences to triggering event). In this case, that analysis supports
SEIU 925's position and the PSARA court's conclusion: the event triggering I-
150rs relevant provisions is not the request for records but the agency's "obligation
under the PRA to actually release [them]." PSARA, No. 50430-8-II, slip op. at 8.
The provisions relevant here appear in part three of the initiative, entitled
"Prohibiting the Release of Certain Public Records That Could Be Used To
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986).
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SEIUv. Evergreen Freedom Found, et al., 96578-1
Victimize Seniors and Vulnerable Individuals." CP at 304. By its plain terms, this
part ofthe initiative governs release, not requests.
The statement ofintent in section 7 ofpart three of1-1501 also refers explicitly
to the "release of public records":
It is the intent of part three of this aet to proteet seniors and vulnerable
individuals from identity theft and other financial crimes by preventing the
release of public records that could be used to victimize them. Sensitive
personal information about in-home caregivers for vulnerable populations is
protected because its release could facilitate identity crimes against seniors,
vulnerable individuals, and the other vulnerable populations that these
caregivers serve.
Id.
Two other provisions in I-1501's part three also support SEIU 925's position.
The first is section 10,the provision relied on by the PSARA court, and now codified
at ROW 43.17.410(1). It provides:
To protect vulnerable individuals and their children from identity crimes and
other forms of victimization, neither the state nor any of its agencies shall
release sensitive personal information of vulnerable individuals or sensitive
personal information ofin-home caregivers for vulnerable populations.
RCW 43.17.410(1); see also CP at 305. As the PSARA court noted, this provision
amended chapter 43.17 RCW, which is titled "Administrative departments and
agencies—General provisions" and is not limited to the context ofPRA requests.
Finally, section 11 of the initiative, now codified at RCW 42.56.645, also
supports SEIU 925's position. It contains a list of exceptions to the initiative's
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SEIU V. Evergreen Freedom Found, et al, 96578-1
general rule barring release. RCW 42.56.645(1)("Nothing in [this act] shall prevent
the release of public information in the following circumstances . . . ."). Two of
these exceptions accommodate the public's interest in obtaining information: there
is one for information concerning "individuals who have been accused of or
disciplined for abuse,neglect, exploitation, abandonment, or other acts involving the
victimization of individuals or other professional misconduct," and another for
certain releases "to a bona fide news organization." RCW 42.56.645(l)(b), (h).
There is no exception for pending PRA requests.
To be sure, if there were any ambiguity here, the PRA's broad disclosure
mandate would compel us to affirm the Court of Appeals. See RCW 42.56.030
("This chapter shall be liberally construed and its exemptions narrowly construed
... [and] [i]n the event of conflict between the provisions of this chapter and any
other act, the provisions of this chapter shall govern."); Fisher Broad.—Seattle TV
LLC V. City ofSeattle, 180 Wn.2d 515, 525, 326 P.3d 688(2014)(all exceptions to
the PRA's disclosure requirements, "including 'other statute' exceptions, are
construed narrowly"(citing i/earat Corp. v. Hoppe,90 Wn.2d 123,138-39,580 P.2d
246 (1978))). But the relevant statutes are clear. I-150rs amendment to chapter
43.17 RCW plainly applies to the release of records. Since that application raises
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SEIUV. Evergreen Freedom Found, et al, 96578-1
no ex post facto concerns^ and infringes no vested rights, we hold, consistent with
the Court of Appeals' analysis in PSARA,that ROW 43.17.410(1)is triggered by the
release ofrecords responsive to a pending request.
CONCLUSION
RCW 43.17.410(1) was in effect when the trial court issued the preliminary
injunction on December 9, 2016, and therefore applied prospectively on that day to
bar release of the records responsive to the Foundation's pending request.
Accordingly, we reverse the Court of Appeals and remand to the trial court for
consideration ofthe remaining prerequisites to injunctive relief.
^ A law violates ex post facto clause protections when it "imposes punishment on
an act which was not punishable at the time the act was committed, or when it increases
the quantum ofpunishment for the crime after the crime was committed." State v. Schultz,
138 Wn.2d 638, 643, 980 P.2d 1265 (1999). None of the provisions in I-1501's section 3
impose any punishment at all.
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SEIU V. Evergreen Freedom Found., et al), 96578-1
WE CONCUR:
'A 2^^('eJ-
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Serv. Emp. Int'l Union Local 925 v. State, Dep 't ofEarly Learning, et al.
No. 96578-1
MADSEN,J.(concurring)—I agree with the majority that Initiative 1501 (1-1501)
prevents the release of the names and addresses of individuals providing childcare under
Washington's Working Cormections Child Care program that were requested prior to I-
150rs enactment. I also agree that the Public Records Act(PRA), ch. 42.56 RCW,does
not create a vested right for requesters to examine records. I write separately because I
would hold 1-1501 applies retroactively to pending records requests and emphasize that
the question facing the court today is a narrow one. We are asked to decide, in the
context of a trial court's ruling on injunctive relief, whether a court should apply new law
to a pending PRA request. Instead of answering this narrow question, the majority
broadly states that new law on PRA exemptions applies when an agency plans to release
requested records, which conflicts with this court's recent PRA decision in Gipson v.
Snohomish County, No. 96164-6(Wash. Oct. 10, 2019),
http://www.courts.wa.gov/opinions/pdf/961646.pdf.
ANALYSIS
Generally, the law applicable to a case is that which is in effect when a trial court
rules. State v. Brewster, 152 Wn. App. 856, 859, 218 P.3d 249 (2009). Here, we are
No. 96578-1
Madsen, J., concurring
asked to decide if this rule controls when a PRA request is made, the applicable law on
exemptions changes, and a party seeks injunctive relief applying the changed law. This is
a narrow question, and our answer to it must be considered in light of the unique
procedural posture in which it arises.
Turning first to retroactivity, the language of1-1501 fairly conveys the intent of
the voters to apply the initiative to pending PRA requests. Intent for retroactive
application may be "fairly convey[ed]" from the language of an initiative. State v.
Zornes, 78 Wn.2d 9, 13, 475 P.2d 109(1970)(plurality opinion), overruled on other
grounds by United State v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198,60 L. Ed. 2d 755
(1979). The allegedly retroactive law at issue in Zornes cited to language stating that the
provisions "'shall not ever be applicable to any form of cannabis'" and noted that "not
ever" would be unnecessary if the legislature intended the act to only operate
prospectively. Id.(quoting LAWS OF 1969, ch. 256, § 7(13)); see also State v. Rose, 191
Wn. App. 858, 865, 365 P.3d 756(2015)(examining Zornes). Here, 1-1501 does not
contain similarly unequivocal words. But such unequivocal statements are not
necessarily required to evidence retroactive intent.
In State v. Grant, a defendant appealed her conviction for intoxication on a public
highway in violation of RCW 9.68.040, which had been repealed in 1972. 89 Wn.2d
678,681, 575 P.2d 210 (1978). When this court reviewed the appeal, a new act was in
effect, which stated that intoxicated persons may not be subjected to criminal prosecution
solely because of their consumption of alcohol but, rather, should be afforded treatment.
No. 96578-1
Madsen, J., concurring
Id. at 682(citing former RCW 70.76A.010(Laws OF 1972, Ex. Sess., ch. 122, § 31)).
Relying on Zornes, the Grant court found legislative intent in the statement that "no
person shall go to trial on such a charge after the effective date ofthe act," indicating its
retroactive application. Id. at 684. In Rose, the Court of Appeals examined whether
Initiative 502 decriminalizing marijuana applied to pending prosecutions. 191 Wn. App.
at 862-63. 1-502 stated that the '"people intend to stop treating adult marijuana use as a
crime and try a new approach.'" Id. at 868. Treating marijuana as a crime occurs when a
suspect is arrested and charged, as well as when a suspect is taken to trial and when a
court imposes a punishment. Id. at 869. The court held that a voter would read intent to
stop treating marijuana as a crime as stopping prosecutions on the effective date ofthe
initiative. Id.
Similar to Zornes, Grant, and Rose, the statement of intent in this case applies to
pending records requests. 1-1501 states that it intends to ''protect seniors and vulnerable
individuals from identity theft and other financial crimes by preventing the release of
public records that could be used to victimize them." Clerk's Papers(CP)at 304 (section
7)(emphasis added). The intent statement of part III goes on to explain that the release
of personal information about in-home caregivers "is protected because its release could
facilitate identity crimes against seniors, vulnerable individuals, and the other vulnerable
populations that these caregivers serve." Id. The repeated reference to "release" of
personal information is not strictly prospective; pending requests would also release the
information protected by the initiative. And this protection would be meager indeed if it
No. 96578-1
Madsen, J., concurring
applied solely to records released after I-lSOl's effective date—it would leave out the
personal information in pending PRA requests and leave seniors and their caregivers
vulnerable to financial crimes. 1-1501 states that the law is to be liberally construed to
promote the policy of protecting in-home caregivers for vulnerable populations. Id. at
306 (section 12).
The plain language of the initiative fairly conveys the voters' intent to stop the
release of sensitive information of vulnerable populations and thus stop fraudulent actors
who "continue to prey on them." State of Washington Voters' Pamphlet, General
Election 35 (Nov. 8, 2016). The terms "release" and "protection" indicate that a voter
would assume 1-1501 applies to pending PRA requests.
Accordingly, 1 would hold that 1-1501 applies retroactively and the trial court
should have applied the law in effect at the time it issued its ruling. A court's denial of
injunctive relief and order to release records triggers l-lSOl's retroactive application.
The majority analyzes l-lSOl'sprospective application and concludes that the
triggering event for l-lSOl's relevant provisions is an agency's obligation to release
requested records. Majority at 12. 1 disagree. In light ofthe plain language ofthe
initiative and the procedural context of this ease, it is not the agency's release of records
but the trial court's order to release records that triggers l-lSOl's application. Tethering
1-1501 to an agency's release would directly conflict with this court's recent decision in
Gipson. In Gipson, we concluded that an agency is not required to continuously monitor
for changes in exemptions it asserted when a PRA request is first received, regardless of
No. 96578-1
Madsen, J., concurring
the number of installments of records necessary to satisfy the request. Gipson, slip op.
majority at 9, 13(Madsen, J.). Under the majority's approach in the present case, an
agency responding to a single voluminous request would be required to re-review a
claimed exemption for every installment of records it releases—expressly contrary to
Gipson. The majority's holding is unnecessarily broad and undercuts decided PRA case
law without acknowledgment or explanation. This conflict could be easily avoided by
tying I-1501's triggering event to the trial court's decision regarding releasing requested
records rather than to an agency's obligation to release requested records. While I cannot
join the majority's holding in this respect, I nevertheless agree that 1-1501 applied and
barred release of the requested records.
With these considerations in mind, I respectfully concur.
No. 96578-1
Madsen, J., concurring
^ ]r\AA