Lindeman v. Kelso School District No. 458

¶18

Fairhurst, J.

(concurring in part and dissenting in part) — The public disclosure act (PDA) exempts from public disclosure public records containing “[pjersonal information in any files maintained for students in public schools.” Former RCW 42.17.310(1)(a)5 (2003), reenacted and amended at RCW 42.56.230(1) (Laws of 2005, ch. 274, § 403) (hereinafter the “student file exemption”). The Court of Appeals affirmed the trial court’s order on show cause that the student file exemption exempted from disclosure a public school bus surveillance videotape capturing an altercation between students. Lindeman v. Kelso Sch. Dist. No. 458, 127 Wn. App. 526, 529, ¶¶ 2-3, 111 P.3d 1235 (2005). I concur in the majority’s decision to reverse the Court of Appeals because the trial court applied the wrong legal standard in reaching its ruling that the videotape was exempt in its entirety. However, I disagree with the majority’s decision to grant Richard and Ginger Lindeman’s disclosure request on remand. Majority at 204. I would remand to the trial court for determination of whether, and to what extent, the information in the videotape is “[p]ersonal information” that is “in any files maintained for students” and thus exempt under the student file exemption. Former RCW 42.17.310(1)(a).

¶19 I agree with the majority that Webster’s Third New International Dictionary provides the appropriate definition for “personal” in “personal information” as used in the student file exemption. State v. Sullivan, 143 Wn.2d 162, 175, 19 P.3d 1012 (2001) (absent a controlling statutory definition, the court will give a term its plain and ordinary meaning as ascertained from a standard dictionary, while *206avoiding unlikely, absurd, or strained consequences). Thus, “personal information” in the student file exemption encompasses information relating to, or affecting, a particular individual, or information associated with private concerns, or information that is not public or general. Webster’s Third New International Dictionary 1686 (2002).

¶20 The majority properly rejects the Lindemans’ contention that the definition of “personal” should be constrained to a mere portion of Webster’s meaning — to just peculiar or proper to private concerns, not public or general. Id. Such a limited definition would equate “personal information” with private information and render superfluous the explicit privacy language present in former RCW 42.17.310(1)(b) (2003), reenacted and amended at RCW 42-.56.230(2) (Laws of 2005, ch. 274, § 403).6 As the Court of Appeals noted, a “relatively broad definition” of personal information is “the most consistent with the statute as a whole because the subsections, other than (l)(a), specifically implicate a person’s privacy interests whereas subsection (1)(a) does not.” Lindeman, 127 Wn. App. at 539, ¶ 31. The majority’s approach is consistent with the rule that a statute must be construed in its entirety, each provision read in relation to the other provisions, and no portion rendered superfluous. In re Det. of Williams, 147 Wn.2d 476, 490, 55 P.3d 597 (2002); Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 260, 884 P.2d 592 (1994).

¶21 I also agree with the majority that the student file exemption can be construed narrowly, in compliance with the directive of the PDA, by recognizing that it “does not exempt any and all personal information — it exempts only personal information ‘in any files maintained for students in public schools.’ ” Majority at 202 (emphasis added) (quoting former RCW 42.17.310(1)(a)). The relatively broad class of personal information is thereby reduced to only that *207information displaying the particular, identified characteristic of being maintained for students. In effect, the personal information exempt from disclosure is limited to that kept by schools for purposes intrinsically connected with the students themselves, rather than for more general purposes.

¶22 However, I dissent from the majority’s holding that the student file exemption does not apply to the videotape in this case. A public school bus surveillance videotape capturing an altercation between students could be “[personal information in any files maintained for students in public schools.” Former RCW 42.17.310(1)(a). Certainly, as I explain below, the student file exemption does not manifestly exclude that possibility.

¶23 First, the majority’s construction of the phrase “ ‘files maintained for students in public schools’ ” reads into the student file exemption a limitation not enacted by the voters. Majority at 202. The majority depicts the student file exemption as “contemplating] the protection of material in a public school student’s permanent file” Id. (emphasis added). The majority represents that “permanent file” materials include “a student’s grades, standardized test results, assessments, psychological or physical evaluations, class schedule, address, telephone number, Social Security number, and other similar records.” Id. However, the majority’s characterization of these so-called “permanent files” is beside the point, because the student file exemption states that it applies to “any files maintained for students,” not just permanent ones. Former RCW 42.17-.310(1)(a) (emphasis added).

¶24 When interpreting a statute enacted through the initiative process, as was the PDA, courts attempt to “ascertain the collective intent of the voters who, acting in their legislative capacity, enacted the measure.” Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2001). When the voters have chosen not to include certain language, courts do not add words or clauses to the statute but instead assume the *208voters “ £mean[t] exactly what [the statute] says.’ ” State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003) (quoting Davis v. Dep’t of Licensing, 137 Wn.2d 957, 964, 977 P.2d 554 (1999)). The voters directed that the student file exemption encompass “any files maintained for students.” Former RCW 42.17.310(1)(a) (emphasis added). The majority’s limitation of the student file exemption to only records that would be kept in students’ permanent files is unwarranted.

¶25 Second, the majority errs in concluding that the videotape, because it is from a surveillance camera, “differs significantly from the type of record that schools maintain in students’ personal files.” Majority at 203. The videotape’s inherent character as a record is not defined by the technology that produced it. A “ £[p]ublic record’ ” can be “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”7 Former RCW 42.17.020(36) (2002), amended as RCW 42.17.020(41) (Laws of 2005, ch. 445, § 6) (emphasis added). A “ £[w]riting’ ” includes “handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including . . . video recordings.” Former RCW 42.17.020(42) (2002), amended as RCW 42.17.020(48) (Laws of 2005, ch. 445, § 6) (emphasis added). Thus, under the PDA, the videotape’s inherent character as a record is defined by the information it contains and to what that information relates, not the source from which it originates.

¶26 In this case, Kelso School District No. 458 (District) “retained this tape solely for disciplinary purposes; otherwise, it would have been taped over as was the District’s *209normal procedure.” Lindeman, 127 Wn. App. at 529, ¶ 1. In other words, this videotape was retained specifically because it contained information documenting an altercation between students. As a record, the videotape is therefore analogous to other District writings documenting student altercations, for example, written descriptions or still photographs. Whether the District keeps such records and, in particular, kept the videotape in question “in any files maintained for students” is a question of fact that I believe this court cannot resolve based on the record before us. Former RCW 42.17.310(1)(a).

¶27 Third and finally, I disagree that if “the videotape [were] actually a record in the student’s file, the District would have immediately recognized it as such and would not have shared it absent a court order or subpoena or the consent of the student’s parent or guardian.” Majority at 203. As the volume of PDA-associated litigation demonstrates, the PDA does not provide the crystal clarity the majority ascribes to it. The fact that the District permitted the Lindemans, parents of one of the students involved in the altercation, to view the videotape on the evening of the incident should not be dispositive of whether the videotape is exempt under the student file exemption.

¶28 Consequently, for the reasons discussed above, I cannot join in the majority’s decision that the videotape in this case fails to satisfy the student file exemption. I would remand this matter to the trial court for a determination of whether, and to what extent, the information in the videotape is, in fact, “[p]ersonal information” that is “in any files maintained for students in public schools.” Former RCW 42.17.310(1)(a).

Madsen, J., concurs with Fairhurst, J.

Former RCW 42.17.310(1)(a) also exempts “[p]ersonal information in any files maintained for . . . patients or clients of public institutions or public health agencies, or welfare recipients.”

Former RCW 42.17.310(1)(b) exempts “[plersonal 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.” (Emphasis added.)

The parties do not dispute that the videotape is a “ ‘[pjublic record,’ ” thereby leaving open for future consideration the question of whether a school district’s surveillance videotape showing children on a public school bus does, in fact, contain “information relating to the conduct of government or the performance of [a] governmental or proprietary function.” Former RCW 42.17.020(36) (2002), amended as RCW 42.17.020(41) (Laws of 2005, ch. 445, § 6).