¶41 (concurring) — I concur in the result reached by my colleagues but write separately to stress that absent 49 C.F.R. § 40.321, the drug and alcohol test results of public employees working in heavily regulated industries (like common carriers) would be subject to the Public Records Act (PRA), ch. 42.56 RCW, under Washington law. Although I agree that summary judgment is proper, I do so not because a federal statute creates an exemption to PRA disclosure (which may or may not be asserted by a government agency), but because, here, federal law preempts the PRA’s “strongly worded mandate for broad disclosure of public records.” Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 714, 261 P.3d 119 (2011).
¶42 Washington’s PRA asserts,
The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.
RCW 42.56.030.
¶43 Despite this bold language, a later amendment to the PRA, RCW 42.56.070(1), allows a government agency to *300exercise disclosure exemptions for any “other statute which exempts or prohibits disclosure of specific information or records.” For instance, in Hangartner v. City of Seattle, 151 Wn.2d 439, 453, 90 P.3d 26 (2004), our Supreme Court determined that the attorney-client privilege, codified at RCW 5.60.060(2)(a), was an “other statute” disclosure exemption for purposes of PRA compliance “[b]ecause RCW 5.60.060(2)(a) is unquestionably a statute other than RCW 42.17.260(6), 42.17.310, or 42.17.315 that prohibits the disclosure of certain records, documents that fall under RCW 5.60.060(2)(a) are exempt from the public disclosure act.” Prior to our Supreme Court’s recent opinion in Ameriquest Mortgage Co. v. Office of Attorney General, 170 Wn.2d 418, 241 P.3d 1245 (2010) (Ameriquest II), such “added” exemptions to the PRA were limited — and limited to statutes promulgated by the Washington Legislature.
¶44 Ameriquest II dealt with the privacy of nonpublic information in circumstances that were decidedly different from those presented by the case before us. In Ameriquest II, the privacy right at stake involved the private financial information of ordinary citizens seeking mortgages: following a settlement agreement between the Washington State Office of the Attorney General (AGO) and Ameriquest Mortgage Company, a member of the public invoked the PRA in an attempt to obtain sensitive financial documents collected by the AGO during its investigation of Ameriquest’s lending practices. 170 Wn.2d at 424. The AGO notified Ameriquest that it intended to comply with the PRA request. Ameriquest II, 170 Wn.2d at 427. Ameriquest sought and received an injunction against the AGO that barred the release of the citizen customers’ private financial information at issue. Ameriquest II, 170 Wn.2d at 428.
¶45 On direct appeal to this court, the AGO argued that because it was neither a financial institution nor a “nonaffiliated third party,” the federal statute at issue there — the Gramm-Leach-Bliley Act (the GLBA), 15 U.S.C. §§ 6801-6809 — did not apply to it and that it was required under the *301PRA to disclose the information requested. Ameriquest Mortg. Co. v. Attorney Gen., 148 Wn. App. 145, 160-61, 199 P.3d 468 (2009) (Ameriquest I), aff’d, 170 Wn.2d 418. At that time, the AGO’s argument did not persuade us:
The GLBA’s definition of a “nonaffiliated third party” is purposefully broad to better protect nonpublic customer information from those who would misuse it. On this issue, the AGO is situated no differently than [other nonaffiliated third parties] . We hold that the AGO is a nonaffiliated third party and the GLBA’s confidentially provisions apply. This federal provision prohibiting disclosure of information directly conflicts with Washington’s PRA and thus, the GLBA’s nondisclosure provisions preempt the PRA.
Ameriquest I, 148 Wn. App. at 162 (footnote omitted). In arriving at this result, we stressed that “the GLBA prohibits only release of nonpublic information” and, accordingly, the AGO could still release publicly available information in the loan customers’ files — a factual determination the trial court needed to address on remand. Ameriquest I, 148 Wn. App. at 165.
¶46 Our Supreme Court granted review of our decision in Ameriquest I solely to address whether “ ‘federal law preempts or precludes disclosure of information in the loan files held by the Attorney General.’ ” Ameriquest II, 170 Wn.2d at 428-29. Although the court did not directly overrule our decision, it upheld the applicability of the GLBA’s nondisclosure provisions on the grounds that having “held numerous other state statutes’ disclosure prohibitions are . . . incorporated into the PRA,” it could “see no reason why federal law should be treated differently.” Ameriquest II, 170 Wn.2d at 440. In essence, in Ameriquest II, our Supreme Court held that a federal statute creates an exemption to the PRA. The majority applies this exemption rationale in its opinion upholding summary judgment in this case.
¶47 It is this exemption creation reasoning from which I depart; the broadly worded intent of the PRA should not be *302read to so easily allow the mere existence of a federal statute to curtail access to public information. Absent a judicial finding of preemption, we should not read a federal statute to create an unintentional, if not unwitting, exemption to the public’s right to access its own records.
¶48 In situations like those presented in Hangartner— situations where the privacy provisions of one law duly enacted by the Washington legislature conflict with the disclosure requirements of another duly enacted Washington law (the PRA) — it is necessary and appropriate to apply RCW 42.56.070(1) to harmonize the conflicting provisions. But where privacy provisions of federal law conflict with the PRA, requiring a finding of preemption is necessary to safeguard public access. A preemption finding is necessary to assure Washington’s citizens that the information is being withheld because federal law constrains the disclosure and not by virtue of a judicially created PRA exemption that may or may not be asserted by the government agency holding the information sought. Augmenting (or restricting) exemptions to the PRA is a function better left to Washington’s elected legislators, who are presumed to act intentionally to create such an exemption with knowledge of its impact.
¶49 Here, the Freedom Foundation seeks to discover the results of a ferry employee’s drug and alcohol tests following an accident serious enough to cause harm to a passenger. This is exactly the kind of public record citizens need to make informed decisions about the safety and security of Washington’s common carriers and to decide whether to ride the ferry or not. Such information should be open to public review under the PRA. RCW 42.56.050 states,
A person’s “right to privacy,” “right of privacy,” “privacy,” or “personal privacy,” as these terms are used in this chapter, is invaded or violated only 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. The provisions of this chapter dealing with the right to privacy in certain *303public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public’s right to inspect, examine, or copy public records.
¶50 Ferry employees, like other employees engaged in highly regulated industries, are public employees responsible to their employer — the citizens of Washington. As operators or crew members of a vehicle transporting the public, ferry employees have a reduced reasonable expectation of privacy in their job performance while on duty. Similar to Washington’s law of implied consent, under which someone who operates a motor vehicle on Washington highways is deemed to have consented to blood and alcohol testing if involved in an injury accident,20 a public employee operating or crewing a common carrier may reasonably be required to submit to testing designed to determine whether drugs or alcohol impaired their ability to properly perform their public job duties and resulted in an injury to a passenger.
¶51 Absent the federal prohibition on disclosing test results, I question whether a legitimate privacy interest exists precluding the release of results of on-the-job drug and alcohol tests given public employees following an injury accident involving a common carrier, here a ferry boat. In accord with RCW 42.56.050, although embarrassing, the release of such information is not “highly offensive.” Moreover, any legitimate discomfort the public employee may experience must give way to citizens’ legitimate concerns that public employees working in highly regulated (and dangerous) fields — especially fields like the Washington State Ferry System, which transports millions of people, tourists, and their vehicles year in and year out — are not impaired by drugs and alcohol in the performance of their job duties.
*304¶52 The express provisions of 49 C.F.R. § 40.321, however, preclude the release of the information requested here. Under this provision, Washington State Department of Transportation (WSDOT) cannot release these records without violating the federal regulations. Put more succinctly, here our state law conflicts with federal law and it is impossible for WSDOT to comply with both the state and federal law. Thus, federal law has preempted Washington law regarding the release of these records and federal law prohibits WSDOT from releasing them. See Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 326-27, 858 P.2d 1054 (1993) (“Federal preemption of state law may occur if. . . state law conflicts with federal law due to impossibility of compliance with state and federal law or when state law acts as an obstacle to the accomplishment of the federal purpose.”).
¶53 Accordingly, I concur only in the result.
RCW 46.20.308.