IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
WASHINGTON EDUCATION No. 83343-0-I
ASSOCIATION, SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 925, DIVISION ONE
INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 609, PUBLISHED OPINION
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS LOCAL 117,
WASHINGTON PUBLIC EMPLOYEES
ASSOCIATION, WASHINGTON NURSES
ASSOCIATION, PROTEC 17, AMERICAN
FEDERATION OF TEACHERS,
WASHINGTON and WASHINGTON
FEDERATION OF STATE EMPLOYEES,
labor organizations,
Respondents,
v.
WASHINGTON STATE DEPARTMENT
OF RETIREMENT SYSTEMS and
WASHINGTON OFFICE OF FINANCIAL
MANAGEMENT,
Respondents,
FREEDOM FOUNDATION,
Petitioner.
ANDRUS, A.C.J. — The Freedom Foundation (Foundation) challenges a
preliminary injunction prohibiting the Department of Retirement Services (DRS)
No. 83343-0-I/2
and the Office of Financial Management (OFM) from releasing the full names and
dates of birth of public employees under RCW 42.56.230(3) of the Public Records
Act (PRA).
We conclude that a recent amendment to RCW 42.56.250(8) prohibits DRS
and OFM from disclosing the month and year of birth of any public employee
unless the Foundation can establish that it is a member of the “news media.” We
cannot resolve that factual issue here because it has yet to be litigated below. If
the Foundation is able to meet its burden of proof under RCW 42.56.250(8), then
the trial court’s determination that the data is exempt from disclosure under RCW
42.56.230(3)’s privacy exemption would remain at issue. We therefore conclude
the amendment of RCW 42.56.250(8) does not render this appeal moot. We
further conclude that the trial court erred in holding that public employee birthdates,
when linked to their names, are exempt under RCW 42.56.230(3).
We reverse the preliminary injunction to the extent it is premised on RCW
42.56.230(3). We remand for the trial court to determine whether to enter a
preliminary injunction based on RCW 42.56.250(8) and to determine whether the
Foundation qualifies as “news media” and is entitled to the requested data under
that statutory provision.
FACTS
The Foundation is a nonprofit organization seeking to promote “individual
liberty, free enterprise, and limited, accountable government.” The Foundation
advocates for public sector labor union reform and transparency, a part of which
involves informing public employees of their constitutional and statutory rights to
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opt out of union membership. To identify its public employee audience, the
Foundation has submitted several PRA requests to government agencies seeking
the personally identifying information of unionized employees.
Unions representing these employees have resisted the Foundation’s
efforts by initiating lawsuits seeking to enjoin the disclosure of information they
deem private. For example, in Service Employees International Union Local 925
v. Department of Early Learning, 194 Wn.2d 546, 450 P.3d 1181 (2019) (DEL),
unions brought suit to prevent the Foundation from obtaining the names and
addresses of individuals providing subsidized childcare under Washington’s
Working Connections Child Care program. In that case, the Supreme Court held
that RCW 43.17.410(1) prevented the Foundation from accessing personal
information of in-home caregivers or vulnerable populations. Id. at 558.
That same year, in Washington Public Employees Ass’n v. Washington
State Center For Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 490, 450
P.3d 601 (2019) (WPEA), the Foundation submitted PRA requests to several state
agencies seeking the disclosure of unionized employees’ names, associated birth
dates, and agency work email addresses. The unions argued that RCW
42.56.230(3), which exempts from disclosure “[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,” applied to their
members’ names when linked to their full dates of birth. 194 Wn.2d at 496. Our
Supreme Court, in a 5 to 4 decision, held that the disclosure of birth dates
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associated with public employees’ names would not violate the employees’ right
to privacy under RCW 42.56.230(3). Id. at 508.
On February 28, 2020, the Foundation crafted two PRA requests to conform
to the Supreme Court’s ruling in WPEA and sought the disclosure of names and
birthdates of certain public employees. The Foundation’s request to DRS sought
the full name and full date of birth of any public employee participating in the
Teachers’ Retirement System (TRS) or School Employees’ Retirement System
(SERS). Its request to OFM sought the full name and full date of birth of every
state employee employed in a union-represented bargaining unit. 1 The
Foundation sought the data to “contact public employees about their constitutional
and statutory rights regarding union membership, dues payment and
representation.”
Both agencies notified the affected labor unions that, in the absence of an
injunction, they would release the records on April 10, 2020 and April 30, 2020,
respectively.
On March 1, 2020, the day after the Foundation submitted its requests,
Substitute House Bill (SHB) 1071 went into effect. This legislation amended RCW
42.56.590 to require any public agency that owns, maintains or licenses personal
data to notify Washington residents when their personal information was accessed
in a data security breach. SUBSTITUTE H.B. 1071, 66TH LEG., REG. SESS. (Wash.
2019); RCW 42.56.590(1). RCW 42.56.590(10) now provides in pertinent part:
1 The Foundation’s request excluded ferry system employees, employees represented by either
the Washington State Patrol Lieutenants and Captains Association or the Washington State Patrol
Troopers Association, undercover officers, and employees of community colleges or public four-
year universities.
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(a) For purposes of this section, "personal information" means:
(i) An individual’s first name or first initial and last name in
combination with any one or more of the following data
elements:
....
(D) Full date of birth . . . .
On March 26, 2020, several labor organizations (the Unions)2 representing
public employees covered by the Foundation’s requests filed a complaint and
sought to enjoin release of the public employees’ names linked to their dates of
birth. The Unions argued that the 2020 amendment to RCW 42.56.590(10),
defining “personal information” as including a name linked to a full date of birth,
effectively amended RCW 42.56.230(3) and made the release of such information
a violation of the employees’ right to privacy.
On April 8, 2020, the trial court issued the preliminary injunction. The trial
court found that the disclosure of the employees’ names in conjunction with their
full dates of birth would violate their right of privacy, was not in the public interest,
and would cause irreparable harm to union members. The preliminary injunction
enjoined DRS and OFM from “releasing or disclosing the names in conjunction
with full dates of birth.”
The trial court granted the Foundation’s motion to certify the case for
interlocutory appeal. Division Two of this court granted discretionary review under
2 This group was initially comprised of Washington Education Association (WEA), Service
Employees International Union Local 925 (SEIU 925), and International Union of Operating
Engineers, Local 609 (IUOE 609), but International Brotherhood of Teamsters, Local 117
(Teamsters 117), Washington Public Employees Association (WPEA), Washington Nurses
Association (WSNA), PROTEC 17, American Federation of Teachers (AFT) and Washington
Federation of State Employees (WFSE) later joined the amended complaint.
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RAP 2.3(b)(4), concluding that the preliminary injunction involved a controlling
question of law over which there is substantial ground for a difference of opinion.
On June 11, 2020, while this appeal was pending, the state legislature
amended RCW 42.56.250. See SECOND SUBSTITUTE H.B. 1888, 66th Leg., Reg.
Sess. (Wash. 2020). As amended, this provision now reads:
The following employment and licensing information is exempt from public
inspection and copying under this chapter: . . .
(8) Photographs and month and year of birth in the personnel files of
employees or volunteers of a public agency, including employees and
workers of criminal justice agencies as defined in RCW 10.97.030. The
news media, as defined in RCW 5.68.010(5), shall have access to the
photographs and full date of birth.
RCW 42.56.250(8) (emphasis added). The Unions contend that this statutory
provision renders the Foundation’s appeal moot and ask us to dismiss the appeal.
ANALYSIS
A. Mootness
The Unions contend that the trial court’s preliminary injunction, premised on
the privacy exemption in RCW 42.56.230(3), is now moot because RCW
42.56.250(8) clearly prevents DRS and OFM from disclosing public employee birth
dates to the Foundation. The Foundation argues, however, that this appeal is not
moot for three reasons. First, it argues that the amendment to RCW 42.56.250(8)
does not apply retroactively to its pre-existing PRA requests. Second, it maintains
that if the statute applies, it is entitled to invoke the “news media” exception to that
statutory exemption. Finally, it contends that if it is entitled to the birth date
information under RCW 42.56.250(8), this court should address whether the
information is otherwise exempt from disclosure under RCW 42.56.230(3). We
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reject the Foundation’s retroactivity argument but agree that it must be afforded
the opportunity to litigate its status as a member of the news media. And we
conclude that given the possibility that RCW 42.56.250(8) may permit disclosure
to the Foundation, the trial court’s interpretation of the privacy exemption of RCW
42.56.230(3) remains at issue. This appeal is thus not moot.
1. Retroactivity of RCW 42.56.250(8)
The Foundation argues first that we cannot apply the new exemption in
RCW 42.56.250(8) to its pre-existing PRA requests because the statute cannot be
applied retroactively. We reject this argument as inconsistent with Supreme Court
precedent.
Determining whether a statute is retroactive or prospective is a question of
law that we review de novo. State v. Brake, 15 Wn. App. 2d 740, 743, 476 P.3d
1094 (2020).
A newly enacted statute generally applies to all cases pending on direct
appeal and not yet final. State v. Jefferson, 192 Wn.2d 225, 246, 429 P.3d 467
(2018) (citing Landgraf v. USI Film Products, 511 U.S. 244, 275, 114 S. Ct. 1483,
128 L. Ed. 2d 229 (1994); State v. Pillatos, 159 Wn.2d 459, 470, 150 P.3d 1130
(2007); State v. Blank, 131 Wn.2d 230, 248, 930 P.2d 1213 (1997)). Because the
Foundation’s case is before us on direct appeal and is not yet final, we presume
the recently amended RCW 42.56.250(8) applies to this case.
But statutes also generally apply only prospectively unless the legislature
expresses a contrary intent. Jefferson, 192 Wn.2d at 245. There is no express
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intent in RCW 42.56.250(8) that it applies retroactively, as the Foundation correctly
notes.
But in Jefferson, our Supreme Court held that amendments to statutes and
court rules may apply to a pending appeal “if the ‘triggering event’ to which the new
enactment might apply has not yet occurred.” 192 Wn.2d at 246. If the “triggering
event” for the application of the statute or court rule occurred before the effective
date of the amendment, the court would not apply it to a pending case. Id. If the
“triggering event” for the application of the statute or court rule occurred or will
occur after the statute’s effective date, then the statute applies prospectively to the
case. Id.
The Foundation contends that the triggering event here was its PRA
requests to DRS and OFM, events that preceded the effective date of SSHB 1888.
While the government agencies’ obligation to respond to the Foundation’s PRA
requests may have originated from those requests, the date of the requests is not
determinative. “A statute operates prospectively when the precipitating event for
the application of the statute occurs after the effective date of the statute, even
though the precipitating event had its origin in a situation existing prior to the
enactment of the statute.” Aetna Life Ins. Co. v. Wash. Life & Disability Ins. Guar.
Ass'n, 83 Wn.2d 523, 535, 520 P.2d 162 (1974). To determine what event
precipitates or triggers the application of the statute, we look to the subject matter
regulated by that statute. In re Pers. Restraint of Carrier, 173 Wn.2d 791, 809,
272 P.3d 209 (2012).
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Relying on DEL, the Unions and the state agencies argue that the
“triggering event” is not the Foundation’s PRA requests, but is instead each
agency’s release of the requested records. We agree.
In DEL, the Foundation submitted a records request to the Department of
Early Learning (Department) seeking the full name, work address, and work email
address for individuals who provided subsidized childcare under Washington’s
Working Connections Child Care program. Id. at 549. After the Foundation
submitted its request, but before the Department released the records, Washington
voters approved Initiative 1501 (I-1501), which prohibited the release of personal
information about vulnerable individuals or their in-home caregivers, information
that was responsive to the Foundation’s request. Id. at 549-50. Before the law
took effect, a labor organization for the childcare workers filed a complaint seeking
to enjoin the release of the records. Id. at 550. The trial court denied the request
but ordered the Department to delay releasing the records pending appeal. Id.
On appeal, the Foundation argued that it was entitled to the requested
records because I-1501 did not apply to PRA requests predating the effective date
of the initiative. Id. at 552. Our Supreme Court rejected this argument and held
that a public records request does not create a vested right safeguarded from
retroactive infringement. Id. at 554-55. The court noted that “[b]ecause 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.” Id. at 555. The Supreme Court concluded that
the triggering event under the initiative was the government’s release of records,
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not the request for those records. Because the Department had yet to respond to
the pending PRA request, the PRA exemption in effect on the date of release
applied. Id. at 558.
DEL is analogous to this case. First, RCW 42.56.250 states that “[t]he
following employment . . . information is exempt from public inspection and copying
under this chapter . . . .” (Emphasis added). Like I-1501, the focus of the statute
is the regulation of disclosures or information, not requests for that information.
Second, the purpose of SSHB, like I-1501, is to protect individuals from being
victimized by the disclosure of their personal data. Finally, as in DEL, the
amendment did not carve out an exception for pending PRA requests. 194 Wn.
2d at 557. The triggering event under SSHB 1888 and RCW 42.56.250(8) is the
government’s act of making records available for public inspection, an event yet to
occur. Under DEL, the amendment governs the state agencies’ response to the
Foundation’s PRA requests.
We conclude that RCW 42.56.250(8) applies to the Foundation’s PRA
requests to DRS and OFM.
2. News Media Exception
At oral argument in this case, the Foundation asserted that if RCW
42.56.250(8) applies, it is nevertheless entitled to the birthdate data as a member
of the “news media.” Wash. Court of Appeals oral argument, WA Education
Association, et. al. v. Dept. of Retirement Systems, No. 83343-0 (Jan. 14, 2022)
at 5 min., 29 sec. to 5 min., 53 sec. Under this exemption, the government must
disclose public employee birth date data to any entity “in the regular business of
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news gathering and disseminating news information to the public by any means”
within the meaning of RCW 5.68.010(5). Green v. Pierce County, 197 Wn.2d 841,
851, 487 P.3d 499 (2021). The Foundation bears the burden of proving the news
media exception. Id. at 852.
But this issue was not raised below because the statute on which the Unions
now rely went into effect after this interlocutory appeal was accepted. We cannot,
on the record before us, resolve the Foundation’s assertion that it is a member of
the new media. This issue should be resolved by the trial court on remand.
3. Relevance of RCW 42.56.230(3) Exemption on Remand
The Foundation argues that we should decide whether the trial court erred
in interpreting RCW 42.56.230(3) because this privacy exemption may become
relevant on remand if it establishes it is a member of the news media. We agree.
An appeal is moot when a court can no longer provide effective relief. SEIU
Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 602, 229 P.3d 774 (2010). Here,
we cannot conclude that RCW 42.56.250(8) precludes DRS and OFM from
disclosing public employee birth date data to the Foundation until the trial court
resolves the news media exception. If the trial court were to conclude that the
exception applies, then the privacy exemption under RCW 42.56.230(3) could
provide an alternative avenue for withholding the same information. We therefore
can provide effective relief to the Foundation in this appeal by resolving the scope
of that statutory exemption.
Because the trial court’s interpretation of RCW 42.56.230(3) remains at
issue in this case, the Foundation’s appeal is not moot.
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B. RCW 42.56.230(3)
The Foundation argues that the trial court erred in concluding that RCW
42.56.230(3) exempts public employee birthdates from disclosure by DRS and
OFM. We agree.
Whether requested records are exempt from disclosure presents a legal
question that is reviewed de novo. Resident Action Council v. Seattle Hous. Auth.,
177 Wn.2d 417, 428, 327 P.3d 600 (2013); RCW 42.56.550(3).
The PRA exempts from disclosure “[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).
RCW 42.56.230 does not define “personal information,” but our Supreme Court
held that the disclosure of public employee birthdates did not violate their right to
privacy and thus was not exempt from disclosure under RCW 42.56.230(3).
WPEA, 194 Wn.2d at 502.
Despite this ruling, the trial court granted the Unions’ motion for a
preliminary injunction, concluding that “disclosure of names in conjunction with full
date of birth would violate the right of privacy under RCW 42.56.230(3).” The court
relied on the new definition of personal information found in RCW 42.56.590:
(5) . . . RCW 42.56.590(10)(a)(i)(D), included as part of the
Public Records Act, as amended, includes names in conjunction with
full dates of birth as "personal information," and in enacting SHB
1071, the Legislature has recognized the danger of identity theft;
(6) . . . RCW 42.56.590 must be harmonized with RCW
42.56.230(3) and that the sections must be read together as an
integrated whole . . . .
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This statutory construction ignores critical language in the statute. RCW
42.56.590, entitled “Personal information—Notice of security breaches,” requires
agencies to provide notice to any individual whose personal information is
maintained by the state when their information is acquired in an unauthorized data
breach. As amended, the statute reads, in relevant part:
(10)(a) For purposes of this section, “personal information” means:
(i) An individual’s first name or first initial and last name in
combination with any one or more of the following data
elements:
....
(D) Full date of birth. . . .
RCW 42.56.590 (emphasis added). The plain language of RCW 42.56.590(10)(a)
clearly limits its application to the security breach context. Whenever possible, we
give meaning to every word and phrase the legislature uses. Spokane County v.
Dep't of Fish & Wildlife, 192 Wn.2d 453, 458, 430 P.3d 655 (2018); see Whatcom
County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996)
(“Statutes must be interpreted and construed so that all the language used is given
effect, with no portion rendered meaningless or superfluous.”). If RCW
42.56.590(10)’s “personal information” definition applied to all provisions of the
PRA, the language “for purposes of this section” would be superfluous.
In the absence of clear legislative action to the contrary, the holding in
WPEA controls here and RCW 42.56.230(3) does not exempt public employee
birthdates from disclosure. The trial court erred in concluding otherwise.
We reverse the preliminary injunction premised on RCW 42.56.230(3). We
remand for the trial court to determine whether to enter a preliminary injunction
based on RCW 42.56.250(8) and to determine whether the Foundation qualifies
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as “news media” and is entitled to the requested data under that statutory
provision.
Reversed and remanded.
WE CONCUR:
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