Resident Action Council v. Seattle Hous. Auth.

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

RESIDENT ACTION COUNCIL, )
)
Respondent, ) No. 87656-8
)
v. )
) EnBanc
SEATTLE HOUSING AUTHORITY, )
)
Appellant. ) MAY 09 2013
Filed - - - - - - - -
_______________________ )
GONZALEZ, J.-This direct appeal concerns the public disclosure of Seattle

Housing Authority (SHA) grievance hearing decisions pursuant to the Public Records

Act (PRA), chapter 42.56 RCW. SHA hearing decisions contain welfare recipients'

personal information. This information is exempt from disclosure under the PRA, but

the PRA requires redaction and disclosure of public records insofar as all exempt

material can be removed. Accordingly, the PRA requires redaction of welfare

recipients' exempt information contained in SHA's grievance hearing decisions.

Applicable federal regulations do not exempt the hearing decisions from disclosure,

nor do applicable federal regulations preempt the PRA. Thus, the trial court properly

ordered SHA to produce the grievance hearing decisions pursuant to the redaction

requirement of the PRA, properly ordered SHA to produce the responsive records in
Resident Action Council v. Seattle Housing Authority, No. 87656-8

electronic format and to establish necessary policies and procedures to ensure

compliance with the PRA, and properly awarded statutory damages. We affirm the

trial court and award respondent Resident Action Council (RAC) its attorney fees on

appeal.

I. FACTS AND PROCEDURAL HISTORY

SHA is a local housing authority that provides federally subsidized public

housing in Seattle. Disputes between individual tenants and SHA are resolved

through a grievance hearing process resulting in a written decision from a hearing

officer. Pursuant to applicable federal regulations, an unredacted copy of each

decision is placed in the tenant's file at SHA and a separate redacted copy is placed in

a central file. See 24 C.F.R. § 966.57(a). RAC is a group of SHA tenant leaders

seeking copies of all SHA grievance hearing decisions dated June 17, 2007, or later.

On June 17, 2010, RAC made a request under the PRA for copies of all such hearing

decisions and also requested that such copies be provided in electronic format to

minimize reproduction costs.

SHA produced redacted hard copies of the hearing decisions without

explanation or comment. RAC then complained that SHA had failed to explain its

redactions, that the hearing decisions were inconsistently redacted and some of the

decisions had been overly redacted, that SHA had included numerous duplicates and

nonresponsive documents (and was seeking compensation for production of those

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

documents), and that the documents had been delivered in hard copy with a

"messenger fee" rather than in electronic format as requested. SHA failed to respond.

RAC then sought relief in superior court under the PRA, seeking costs, fees,

and statutory damages, and an injunction requiring SHA to produce copies of the

hearing decisions (without any unauthorized redactions and in electronic format).

RAC also sought an injunction ordering SHA to establish (1) published procedures for

requesting documents, (2) a published list of relevant PRA exemptions, (3) a policy

for redacting grievance hearing decisions, (4) a policy for providing explanations for

withholding or redacting documents, and ( 5) a policy of providing records in

electronic format when requested. SHA argued in part that the unredacted hearing

decisions are not subject to the disclosure or redaction requirements of the PRA and

that it already disclosed the redacted decisions in full.

The trial court granted RAC the relief it requested. The trial court first ordered

SHA to produce "all grievance hearing decisions subject to RAC's request" with

"[ o]nly names and identifying information of SHA tenants ... redacted," with a code

or marks to distinguish among redacted items, and in electronic format. Clerk's

Papers at 171. In a subsequent order, the trial court also directed SHA to pay statutory

damages at a rate of $25 per day, to publish procedures for requesting records, to

publish a list of relevant exemptions, to establish a policy for redacting grievance

hearing decisions, to establish a policy for providing written explanations whenever

withholding records under the PRA, and to provide electronic records when requested.

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

SHA appealed and the case was certified and transferred to this court. SHA

argues ( 1) that the unredacted hearing decisions within individual tenant files are

exempt from disclosure under the PRA and thus, that the only relevant documents

subject to disclosure were produced without (additional) redaction; (2) that it has no

obligation to produce documents in electronic format; (3) that it has no duty to explain

redactions that are made pursuant to federal regulations; (4) that it has wide discretion

in determining how to redact documents under said federal regulations; and (5) that it

has no duty to publish procedures for redactions conducted pursuant to federal

regulations. RAC disagrees and seeks fees on appeal pursuant to RCW 42.56.550(4).

See Progressive Animal Welfare Soc 'y v. Univ. of Wash., 125 Wn.2d 243, 271, 884

P.2d 592 (1994) (PAWS II).

II. STANDARD OF REVIEW

Agency action taken or challenged under the PRA is reviewed de novo. RCW

42.56.550(3); PAWS II, 125 Wn.2d at 252. The burden is on the agency to establish

that an exemption to production applies under the PRA. RCW 42.56.550(1 ). A trial

court's decision to grant an injunction and its decision regarding the terms of the

injunction are reviewed for abuse of discretion. Kucera v. Dep 't of Transp., 140

Wn.2d 200, 209, 995 P.2d 63 (2000).

III. ANALYSIS

Under the broad provisions of the PRA, SHA's unredacted hearing decisions

must be redacted and produced. SHA operates as a local agency in cooperation with

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

the federal Department of Housing and Urban Development (HUD). Although SHA

is subject to limited federal regulations, SHA also remains subject to state laws such

as the PRA. The PRA promotes open government by requiring disclosure of public

records upon request. The PRA applies to SHA's unredacted grievance decisions, and

thus the trial court properly ordered SHA to redact and produce those documents. The

trial court also acted within its discretion when it ordered electronic production and

when it required SHA to establish necessary policies and procedures to ensure

compliance with the PRA. The trial court also properly awarded statutory damages.

A. Legal Background

1. Local Housing Authorities and Cooperative Federalism

SHA is a local housing authority that operates within an established framework

of federal and state cooperation. The United States Housing Act of 1937 allows for

federal assistance to local housing authorities while maintaining and promoting state

and local control. See 42 U.S.C. § 1437f(b)(1) (authorizing "annual contributions

contracts" with local housing authorities); 42 U.S.C. § 1437(a)(1)(C) (establishing

policy of "vest[ing] in public housing agencies that perform well[] the maximum

amount of responsibility and flexibility in program administration"). This sort of

framework, "in which state agencies are given broad responsibility and latitude in

administering welfare assistance programs," has been described as a form of

"cooperative federalism." Turner v. Perales, 869 F.2d 140, 141 (2d Cir. 1989); see

also King v. Smith, 392 U.S. 309, 316-17, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968);

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

Shapiro v. Thompson, 394 U.S. 618,645, 89 S. Ct. 1322,22 L. Ed. 2d 600 (1969)

(Warren, C.J., dissenting) ("Federal entry into the welfare area can ... be best

described as a major experiment in 'cooperative federalism,' combining state and

federal participation to solve the problems of the depression." (citation omitted)),

overruled on unrelated grounds in Edelman v. Jordan, 415 U.S. 651, 671, 94 S. Ct.

1347,39 L. Ed. 2d 662 (1974). The Washington State Legislature authorized the

creation of local housing authorities such as SHA, see RCW 35.82.040, and also has

authorized such local housing authorities to "do any and all things necessary or

desirable to secure the financial aid or cooperation of the federal government," RCW

35.82.200(1). Accordingly, SHA has coordinated with HUD to receive federal

assistance and is now subject to certain federal regulations. See, e.g., Lankford v.

Sherman, 451 F .3d 496, 510 (8th Cir. 2006) (noting that in "a system of cooperative

federalism ... once the state voluntarily accepts the conditions imposed by Congress,

the Supremacy Clause obliges it to comply with federal requirements").

SHA's dispute resolution process must comply with relevant federal

regulations. Specifically, disputes between individual tenants and SHA must be

resolved through a grievance hearing process established pursuant to 42 U.S.C. §

1437d(k) and 24 C.F.R. § 966. Under 24 C.F.R. § 966.57, the secretary ofHUD has

required public housing authorities (PHAs) such as SHA to ensure that disputes are

resolved by hearing officers who must provide written decisions. The federal

regulations also require PHAs to ensure that one copy of each written decision is

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

"retain[ed] ... in the tenant's folder" and another copy "with all names and

identifying references deleted" is on file and "made available for inspection by a

prospective complainant, his representative, or the hearing panel or hearing officer."

24 C.P.R. § 966.57(a). A "complainant" is defined as "any tenant whose grievance is

presented to the PHA," and a "grievance" is defined as "any dispute which a tenant

may have ... [under] the individual tenant's lease or PHA regulations .... " 24

C.P.R. § 966.53(a), (b). Pursuant to these regulations, SHA retains unredacted copies

of hearing decisions in individual tenant files and also retains a central file of redacted

hearing decisions. The dispute in this case arises out ofRAC's request for disclosure

of these documents.

SHA remains subject to state law. State law establishes local housing

authorities in the first place, defines their powers and obligations, and addresses

various ancillary matters related to their operation. See ch. 35.82 RCW (housing

authorities law). Thus, state law applies to SHA except insofar as federal law has

preempted a given state law. See, e.g., PAWS II, 125 Wn.2d at 265.

2. Disclosure and Production under the P RA

The PRA is a "strongly worded mandate for broad disclosure of public

records." Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). The

PRA is to be "liberally construed and its exemptions narrowly construed ... to assure

that the public interest will be fully protected." RCW 42.56.030. Our interpretation

of the PRA's provisions will continue to be grounded in the PRA's underlying policy

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

and standard of construction. We will also avoid absurd results. Hangartner v. City

of Seattle, 151 Wn.2d 439, 448, 90 P.3d 26 (2004). In this difficult area of the law,

we endeavor to provide clear and workable guidance to agencies insofar as possible.

See Bellevue John Does 1-11 v. Bellevue Sch. Dist. #405, 164 Wn.2d 199,218-19,

189 P.3d 139 (2008).

The PRA requires state and local agencies to "make available for public

inspection and copying all public records, unless the record falls within the specific

exemptions of [the PRA] or other statute which exempts or prohibits disclosure of

specific information or records." RCW 42.56.070(1). A "public record" is defined

broadly to include "any writing containing information relating to the conduct of

government or [a govermnental function]" that is "prepared, owned, used, or retained"

by any state or local agency. RCW 42.56.010(3); see also Confederated Tribes of

Chehalis Reservation v. Johnson, 135 Wn.2d 734, 746-47, 958 P.2d 260 (1998).

The PRA requires each relevant agency to facilitate the full disclosure of public

records to interested parties. An agency must publish its methods of disclosure and

the rules that will govern its disclosure of public records. RCW 42.56.040(1). A

requester cannot be required to comply with any such rules not published unless the

requester receives actual and timely notice. RCW 42.56.040(2). More generally, an

agency's applicable rules and regulations must be reasonable and must provide full

public access, protect public records from damage or disorganization, and prevent

excessive interference with other essential functions ofthe agency. RCW 42.56.100.

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

The agency's rules and regulations also must "provide for the fullest assistance to

inquirers and the most timely possible action on requests for information." !d.; see

also RCW 42.56.520 (agency must respond promptly but can notify requester it needs

a reasonable amount of time to determine appropriate further response). An agency

must explain and justify any withholding, in whole or in part, of any requested public

records. RCW 42.56.070(1), .210(3), .520. Silent withholding is prohibited. Rental

Hous. Ass 'n v. City of Des Moines, 165 Wn.2d 525, 537, 199 P.3d 393 (2009); PAWS

II, 125 Wn.2d at 270. Finally, agency actions taken or challenged under the PRA are

subject to de novo review, and any person "who prevails against an agency" is

awarded costs and fees and, in the discretion of the court, a statutory penalty. RCW

42.56.550(4).

The PRA's mandate for broad disclosure is not absolute. The PRA contains

numerous exemptions that protect certain information or records from disclosure and

the PRA also incorporates any "other statute" that prohibits disclosure of information

or records. See RCW 42.56.070, .230-.480, .600-.610. The PRA's exemptions are

provided solely to protect relevant privacy rights or vital governmental interests that

sometimes outweigh the PRA's broad policy in favor of disclosing public records.

See Limstrom v. Ladenburg, 136 Wn.2d 595, 607, 963 P.2d 869 (1998).

Exemptions are to be narrowly construed and limited in effect. First, the

PRA' s purpose of open government remains paramount, and thus, the PRA directs

that its exemptions must be narrowly construed. RCW 42.56.030. Second, the PRA

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

provides that exemptions "are inapplicable to the extent that information, the

disclosure of which would violate personal privacy or vital governmental interests,

can be deleted from the specific records sought." RCW 42.56.210(1); see also RCW

42.56.070. We have interpreted this redaction provision to mean that an agency must

produce otherwise exempt records insofar as redaction renders any and all exemptions

inapplicable. SeePAWS II, 125 Wn.2d at 261 ("Portions of records which do not

come under a specific exemption must be disclosed."); Hearst, 90 Wn.2d at 132

(noting that exemptions are "inapplicable to the extent that exempt materials in the

record 'can be deleted"' (quoting formerRCW 42.17.310(2) (1977))). Ifitis

information within a record that is exempted, such information usually can be

effectively redacted. On the other hand, if a type of record is exempted then

meaningful redaction generally is impossible, unless redaction actually can transform

the record into one that is outside the scope of the exemption. For example, a

document containing attorney work product may be exempted as a "[r]ecord[] that ...

would not be available ... under the rules of pretrial discovery," RCW 42.56.290, but

redaction might transform the record into one that actually would be available in

pretrial discovery, and thus, into a different type of record-one that no longer falls

under the relevant exemption and which would have to be disclosed in redacted form.

See Sanders v. State, 169 Wn.2d 827, 854, 858, 240 P.3d 120 (2010). As to most

record exemptions, however, such transformation will be impossible. See, e.g., RCW

42.56.370 (exempting "[c]lient records maintained by an agency that is a domestic

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

violence program"). Finally, even records that are otherwise exempt may be

inspected or copied if a court finds "that the exemption of such records is clearly

unnecessary to protect any individual's right of privacy or any vital governmental

function." RCW 42.56.210(2); see Oliver v. Harborview Med Ctr., 94 Wn.2d 559,

567-68, 618 P.2d 76 (1980) (burden shifts to the party seeking disclosure to establish

exemption is clearly unnecessary).

The PRA contains numerous information and record exemptions developed

over time and narrowly tailored to specific situations in which privacy rights or vital

governmental interests require protection. In all, the PRA currently contains 141

exemptions. See RCW 42.56.230-.480, .600-.610. The vast majority of these

exemptions are categorical, exempting without limit a particular type of information

or record. See, e.g., RCW 42.56.230(5) (exempting "debit card numbers"). A limited

number of these exemptions are conditional, exempting a particular type of

information or record but only insofar as an identified privacy right or vital

governmental interest is demonstrably threatened in a given case. See, e.g., RCW

42.56.240(2) (exempting "[i]nformation revealing the identity of persons who are ...

victims of crime ... if disclosure would endanger any person's life, physical safety, or

property").

In the case of a categorical exemption, the legislature has established a

presumption that the specified type of information or record generally warrants

exemption. That presumption can be overcome only if a court finds the exemption is

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

"clearly unnecessary" to protect any privacy rights or vital govermnental interests in a

particular case. RCW 42.56.210(2). Otherwise, an agency's application of a

categorical exemption must be upheld, so long as the agency has accurately identified

the nature of the specified information or record. See, e.g., Lindeman v. Kelso Sch.

Dist. No. 458, 162 Wn.2d 196, 201, 172 P.3d 329 (2007).

In the case of a conditional exemption, specified information or records must

be protected, but in furtherance of only certain identified interests, and only insofar as

those identified interests are demonstrably threatened in a given case. Application of

a conditional exemption will be upheld if the agency has accurately identified the

nature of the specified information or record and properly determined that an

identified interest must be protected in the given case. See, e.g., Bellevue John Does,

164 Wn.2d at 210.

The distinction between categorical and conditional exemptions is sometimes

blurry, for numerous reasons. First, determining whether specific information or

records fall within a given categorical exemption may well require a consideration of

privacy or govermnental interests. After all, our interpretation of the scope of a given

categorical exemption often will depend at least in part on its apparent purposes. See

Hearst, 90 Wn.2d at 133. And some categorical exemptions distinguish types of

information or records based on characteristics tied up with privacy or governmental

interests. See, e.g., Lindeman, 162 Wn.2d at 202 (defining exempted "personal

information" as "information peculiar or proper to private concerns" (emphasis

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

added)). If the application of a seemingly categorical exemption ever actually

depends upon a case-by-case evaluation of the need to protect a particular privacy

right or vital governmental interest, the exemption then acts as a conditional

exemption. Second, in the context of conditional exemptions, determining the need to

protect an identified interest is sometimes entrusted to an agency's discretion, which

renders the conditional exemption effectively categorical on review. See Newman v.

King County, 133 Wn.2d 565, 574-75, 947 P.2d 712 (1997) ("This exemption allows

the law enforcement agency, not the courts, to determine what information, if any, is

essential to solve a case."). Finally, some exemptions are ambiguous and thus

difficult to classify. See, e.g., RCW 42.56.300(1) (exempting "[r]ecords, maps, or

other information identifying the location of archaeological sites in order to avoid the

looting or depredation of such sites" (emphasis added)); RCW 42.56.420(3)

(exempting "[i]nformation compiled ... in the development of ... comprehensive

safe school plans ... to the extent that they identify specific vulnerabilities").

The blurry distinction between categorical and conditional exemptions should

not be surprising, given that the PRA is a complex and often confusing statutory

framework that is the result of numerous legislative enactments and now contains over

140 varied exemptions. In most instances, however, the distinction does remain clear.

Compare RCW 42.56.240(6) (exempting the "statewide gang database"), andRCW

42.56.250(1) (exempting "[t]est questions, scoring keys, and other examination data

used to administer a license, employment, or academic examination"), with RCW

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

42.56.230(4)(b) (exempting "[i]nformation required of any taxpayer ... if the

disclosure ... [would] violate the taxpayer's right to privacy or result in unfair

competitive disadvantage"), and RCW 42.56.270(1) (exempting "[v ]aluable formulae

... when disclosure would produce private gain and public loss"). In every instance,

the relevant question is simply whether applying the exemption requires a

particularized finding of the need to protect a privacy right or a vital governmental

interest. If so, the exemption is conditional and applies if and only if there is such a

need in the given case; if the exemption is not conditional, then the exemption is

categorical and it applies outright to all information or records included within the

general category specified.

A list of the 141 current PRA exemptions, preliminarily sorted into relevant

types, is included as an appendix to this opinion. The list includes (1) categorical-

information exemptions, (2) categorical-record exemptions, (3) categorical-hybrid

exemptions (exempting both information and records), (4) conditional-information

exemptions, (5) conditional-record exemptions, and (6) conditional-hybrid

exemptions. The list also includes four ambiguous exemptions that will require

serious consideration and construction prior to any attempt at appropriate grouping.

Further review may also disclose that an exemption listed in one group has been

sorted incorrectly and actually belongs in another group. But this preliminary sorting

of exemptions still should prove useful to agencies trying to navigate and comply with

the PRA. Agencies should also be aware that many exemptions contain specified

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

limitations, which must be followed when relevant. See, e.g., RCW 42.56.360(1 )U)

(exempting "documents ... received pursuant to a wellness program under RCW

41.04.362, but not statistical reports that do not identify an individual").

In sum, an agency facing a request for disclosure under the PRA should take

the following steps: First, determine whether any public records are responsive to the

request-if not, the PRA does not apply. Second, insofar as certain public records are

responsive, determine whether any exemptions apply generally to those types of

records or to any of the types of information contained therein. An agency should be

sure to consider any specified limitations to an exemption when discerning the

exemption's scope of potential application. If no exemption applies generally to the

relevant types of records or information, the requested public records must be

disclosed. Third, if an exemption applies generally to a relevant type of information

or record, then determine whether the exemption is categorical or conditional. If the

exemption is conditional and the condition is not satisfied in the given case, the

records must be disclosed. Fourth, if the exemption is categorical, or if the exemption

is conditional and the condition is satisfied, then the agency must consider whether the

exemption applies to entire records or only to certain information contained therein.

If the exemption applies only to certain information, then the agency must consider

whether the exempted information can be redacted from the records such that no

exemption applies (and some modicum of information remains). If the exemption

applies to entire records, then those records are exempted and need not be disclosed,

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unless redaction can transform the record into one that is not exempted (and some

modicum of information remains). If effective redaction is possible, records must be

so redacted and disclosed. Otherwise, disclosure is not required under the PRA.

These are the indispensable steps that an agency should take in order to properly

respond to a PRA request. These steps are visually represented in the flowchart

contained in figure 1.

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

Figure 1. Determining
whether disclosure is
required under the PRA

Categoric.al

~onnation

Reco'd'

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The "clearly unnecessary" inquiry under RCW 42.56.21 0(2) serves in rare

cases to judicially override exemptions that otherwise apply to a specified type of

information or record. The standard is quite high and is relevant to all categorical

exemptions but only some conditional exemptions. In the case of a categorical

exemption, all information or records of a specified nature are presumed exempt

unless a court finds the exemption clearly unnecessary in a given instance. In the case

of a conditional exemption, if the need to protect an identified interest is reviewed de

novo, a court will not consider whether the conditional exemption is "clearly

unnecessary" because the conditional exemption will be applicable in the first place

only if it is necessary to protect an identified interest. However, if determining the

need to protect an identified interest is vested in the discretion of an agency, it may be

necessary for a court to consider whether the conditional exemption is "clearly

unnecessary" under the circumstances, or in other words, whether the agency has

abused its wide discretion.

The foregoing discussion should provide adequate guidance to agencies such as

SHAin responding to requests for public records. Taking into consideration both the

relevant context of cooperative federalism and the overarching framework of the

PRA, we now turn to whether SHA complied with the PRA in responding to RAC's

request for grievance hearing decisions.

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B. Application

SHA violated the PRA. Initially, the silent withholding of the unredacted

grievance hearing decisions was a violation. But even beyond SHA's improper

silence, the withholding itselfwas also in violation ofthe PRA. The heart ofSHA's

position-that the unredacted grievance hearing decisions within tenant files are

entirely exempted from redaction or disclosure because they contain personal

information of welfare recipients-is untenable. These public records do contain

exempted information about welfare recipients, but the records remain subject to

disclosure insofar as redaction can render all exemptiol).s inapplicable. Relevant

federal regulations do not prohibit production of the documents or preempt the PRA.

Thus, SHA must redact and produce these documents pursuant to the PRA. The trial

court acted within its broad discretion in ordering SHA to produce responsive

documents in electronic format, in also ordering SHA to establish policies and

procedures necessary to ensuring compliance with the PRA, and in awarding statutory

damages.

1. PRA Redaction Requirement

SHA hearing decisions are public records subject to the PRA's disclosure

requirements. The hearing decisions relate to the provision of public housing, and

SHA (a local agency) retains the documents in individual tenant files. Thus, the

hearing decisions are public records. See RCW 42.56.010(3). SHA is correct that the

hearing decisions are exempt from blanket production insofar as they include

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"[p]ersonal information in ... files maintained for ... welfare recipients." RCW

42.56.230(1). The parties do not dispute that the grievance hearing decisions do

contain such information. But the PRA requires production of otherwise exempted

records insofar as exempt information can be deleted. See RCW 42.56.070(1),

.210(1).

SHA argues that the PRA' s redaction requirement simply does not apply to

records containing personal information and maintained in welfare-recipient files.

SHA reasons that such information is not subject to redaction because it is exempted

categorically, unlike, for example, "[p]ersonal information in files maintained for

[public] employees," which is exempted "to the extent that disclosure would violate

their right to privacy." RCW 42.56.230(3). SHA's argument is thus that the PRA's

redaction requirement, which applies only to information "the disclosure of which

would violate personal privacy or vital govermnental interests," RCW 42.56.210(1),

does not apply to any categorical exemptions and applies only to conditional

exemptions (i.e., exemptions that explicitly identify relevant privacy rights or

governmental interests). SHA's interpretation of the PRA reflects a failure to

appreciate the overall framework of the PRA, and SHA is clearly wrong, for

numerous reasons.

First, SHA ignores that all exemptions, including categorical exemptions, are

intended to protect personal privacy and govermnental interests. See Limstrom, 136

Wn.2d at 607; RCW 42.56.210(2).

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Second, SHA ignores that the redaction provision in the PRA explicitly lists

only two exemptions that are not subject to the PRA' s redaction requirement, and the

welfare recipient exemption is not on that list. RCW 42.56.210(1).

Third, the two exemptions listed as not being subject to the redaction

requirement are themselves categorical, and explicitly removing those provisions from

the scope of the redaction requirement would have been superfluous if SHA's

interpretation were correct.

Fourth, we already have held that the PRA' s cmmnand to redact information

"that would violate personal privacy or governmental interests" simply means that an

agency must redact to overcome any and all relevant exemptions, insofar as possible.

See Hearst, 90 Wn.2d at 132-33; PAWS II, 125 Wn.2d at 261. Requiring anything

more or different would be too complicated, unworkable, and time-consuming for

agencies operating under the PRA. Insofar as redaction can render all exemptions

inapplicable, the PRA requires disclosure.

Fifth, we already have applied the redaction requirement to numerous

categorical exemptions. See Sanders, 169 Wn.2d at 858; Hearst, 90 Wn.2d at 132;

see also Prison Legal News, Inc. v. Dep 't ofCorr., 154 Wn.2d 628, 645, 115 P.3d 316

(2005). In fact, perhaps most importantly, we already have explained that the

redaction requirement applies to the very exemption provision at issue in this case.

See Oliver, 94 Wn.2d at 567.

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Sixth, ifSHA's interpretation were correct, only a small number ofthe PRA's

numerous exemptions (that is, only conditional exemptions) would be subject to the

redaction requirement, contrary to the overriding purpose of the PRA and the

legislature's admonition that the PRA "shall be liberally construed and it exemptions

narrowly construed ... .'' RCW 42.56.030.

Seventh, SHA provides no explanation of why the legislature would want to

exempt absolutely from disclosure any records initially containing exempt personal

information-even if redaction could render the exemption inapplicable. SHA's

reading makes no sense, particularly when considering the wide range of categorical

exemptions in the PRA, some of which are quite limited in scope. For example, RCW

42.56.350(1) exempts certain "federal social security number[s] ... maintained in the

files of the department of health," and under SHA's intepretation, any record

containing such a social security number would be absolutely exempted from

production, notwithstanding the fact that the Social Security number could simply be

redacted. If the legislature actually had been interested in protecting the entire records

in question, presumably it would have said so.

SHA's suggested approach to exemption and redaction is untenable. If

redaction sufficiently protects privacy and governmental interests-that is, if

redaction can render all exemptions inapplicable-disclosure is required. Thus,

SHA's unredacted grievance hearing decisions are not absolutely exempt from

production and remain subject to the PRA's redaction requirement.

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

2. Federal Exemption or Preemption

Having rejected SHA's untenable interpretation of the PRA, we now consider

the significance of applicable federal regulations because SHA's grievance hearing

decisions are created pursuant to federal law. The applicable federal regulations do

not exempt the unredacted grievance hearing decisions from disclosure under the

PRA. Nor do the applicable regulations preempt the PRA under the supremacy clause

of the federal constitution. The PRA thus applies to the unredacted grievance hearing

decisions, which are public records, and mandates redaction and disclosure.

Applicable federal regulations do not exempt the grievance hearing decisions

from public disclosure. This inquiry is relevant because the PRA exempts from

disclosure records that are protected by federal regulations. See Ameriquest Mortgage

Co. v. Wash. State Office ofAtt'y Gen., 170 Wn.2d 418,439-40, 241 P.3d 1245

(2010); RCW 42.56.070. In this case, applicable federal regulations establish only

procedural minimums, requiring each housing authority to provide redacted copies of

prior decisions to assist tenants facing imminent adverse action-the regulations do

not prohibit or otherwise regulate disclosure of public records. Specifically, 24 C.P.R.

§ 966.57(a) provides that each written hearing decision "shall be sent to ... the PHA,"

and the PHA "shall retain a copy of the decision in the tenant's folder" and retain

another copy "with all names and identifying references deleted" on file and "made

available for inspection by a prospective complainant, his representative, or the

hearing panel or hearing officer." This regulation does not prohibit disclosure in any

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

way; it merely ensures a limited form of disclosure to a limited class of persons in

order to promote fairness within each housing authority's grievance hearing process.

In the context of cooperative federalism, this minimum requirement allows each state

agency to conduct the rest of its disclosure practices in accordance with relevant state

law. See 42 U.S.C. § 1437(a)(1)(C). In some states, disclosure of such materials

might be entirely prohibited; in that case, the federal regulation ensures a certain type

of disclosure to further the grievance hearing process while allowing the state agency

to otherwise restrict access, thus causing a minimal intrusion upon state and local

laws. By the same token, the regulation does not prevent SHA from disclosing

grievance hearing documents in accordance with the PRA. HUD promulgated this

regulation without commenting on its particular significance. See 40 Fed. Reg.

33,406, 33,406-08 (Aug. 7, 1975). In related contexts, however, HUD has made clear

that it intends for state laws to generally govern disclosure and production of housing

authority documents. See 56 Fed. Reg. 51,560, 51,566 (Oct. 11, 1991) ("The statute

and rule do not purport to establish a Federal privilege against discovery of directly

relevant PHA documents .... However, the statute and rule also do not override

other independently recognized privileges."); see also 53 Fed. Reg. 33,216, 33,281

(Aug. 30, 1988) ("The rule does not disturb the PHA's right to deny production of

privileged documents in accordance with State law . . . . At the same time, however,

the rule does not establish ... any rules governing the circumstances in which a

privilege arises. Rather, the rule defers to State law ... and therefore to State policy

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

underlying the grant or denial of a privilege."), withdrawn on other grounds, 53 Fed.

Reg. 44,876 (Nov. 7, 1988). We have held that exemptions outside of the PRA must

be explicit, and there is no explicit exemption here. See PAWS II, 125 Wn.2d at 262.

Nor do the applicable federal regulations preempt the PRA. Federal

preemption occurs only if ( 1) federal law expressly preempts state law, (2) Congress

has occupied an entire field of regulation to the exclusion of any state laws, or (3)

state law conflicts with federal law due to either impossibility of joint compliance or

state law acting as an obstacle to accomplishment of a federal purpose. SeePA WS II,

125 Wn.2d at 265. In this case there is no express preemption, and given the nature of

cooperative federalism, no field preemption either. There is also no conflict

preemption, given that the applicable regulations do not prohibit disclosure of the

unredacted grievance hearing decisions and the PRA does not act as an obstacle to any

federal purpose. There is a strong presumption against finding that federal law has

preempted state law. State v. Kalakosky, 121 Wn.2d 525, 546, 852 P.2d 1064 (1993).

Further, '"the case for federal preemption becomes a less persuasive one"' within a

system of cooperative federalism, where "'coordinated state and federal efforts exist

within a complementary administrative framework,'" as in this case. State of

Washington v. Bowen, 815 F .2d 549, 557 (9th Cir. 1987) (quoting NY. Dep 't of Soc.

Servs.v. Dublino, 413 U.S. 405, 421, 93 S. Ct. 2507, 37 L. Ed. 2d 688 (1973)). The

PRA applies to SHA's grievance hearing decisions.

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

In sum, SHA' s unredacted grievance hearing decisions are subject to disclosure

under the PRA. The documents are public records that are subject to the PRA's

redaction requirement. Applicable federal regulations neither exempt the documents

from disclosure nor preempt the operation of the PRA. Thus, SHA is obligated to

produce the grievance hearing decisions, redacted only to exclude personal

information of welfare recipients for whom the documents are maintained.

3. Injunctive Relief

The trial court did not abuse its discretion in ordering injunctive relief. The

trial court ordered SHA to produce properly redacted copies of the grievance hearing

decisions in electronic format. The trial court also ordered SHA to publish procedures

regarding public records requests; to publish a list of applicable exemptions; and to

establish policies governing redaction, explanations of withholding, and electronic

records. The trial court acted within its "broad discretionary power to shape and

fashion injunctive relief to fit the particular facts, circumstances, and equities of the

case before it." Brown v. Voss, 105 Wn.2d 366, 372, 715 P.2d 514 (1986) (emphasis

omitted).

An injunction is a remedy that "'should be used sparingly and only in a clear

and plain case.'" Kucera, 140 Wn.2d at 209 (quoting 42 AM. JUR. 2d Injunctions § 2,

at 728 (1969)). A party seeking an injunction must show (1) a clear legal or equitable

right, (2) a well-grounded fear of immediate invasion of that right, and (3) actual and

substantial injury as a result. Wash. Fed'n of State Employees v. State, 99 Wn.2d 878,

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

888, 665 P.2d 1337 (1983). On appellate review, a "trial court's decision to grant an

injunction and its decision regarding the terms of the injunction are reviewed for

abuse of discretion." Kucera, 140 Wn.2d at 209. Further, a trial court's decision "is

presumed to be correct and should be sustained absent an affirmative showing of

error." State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999).

The trial court did not abuse its discretion. RAC has a clear right to appropriate

production of requested documents, SHA has refused to produce those documents,

and RAC remains without the public records it has requested. On numerous occasions

we have allowed detailed "disclosure orders" in PRA cases to remedy an agency's

failure to comply with the PRA. In re Request ofRosier, 105 Wn.2d 606, 618, 717

P.2d 1353 (1986); see also, e.g., PAWS II, 125 Wn.2d at 250; Brouillet v. Cowles

Publ'g Co., 114 Wn.2d 788, 792, 801, 791 P.2d 526 (1990).

Ordering SHA to undertake particular redactions and then to produce the

redacted documents in a particular format was a legitimate way for the trial court to

resolve the precise controversy before it, which arose out ofRAC's request for the

documents in question and SHA's failure to respond appropriately. RAC has

continued to express its preference for electronic copies, and SHA has acknowledged

that producing electronic copies costs SHA no more than producing hard copies.

Neither party challenges the trial court's instructions regarding the precise

redactions to be made in this case. Thus, without directly addressing that issue, we

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affirm the trial court's decision that under the PRA, SHA must redact the names and

identifying information of all SHA tenants from the grievance hearing decisions.

The trial court also acted within its discretion in ordering SHA to publish

procedures regarding public records requests; to publish a list of applicable

exemptions; and to establish policies governing redaction, explanations of

withholding, and electronic records. SHA's total failure to establish reasonable and

effective policies and procedures to govern disclosure of public records was in

violation of the PRA, see RCW 42.56.040, .070, clearly contributed to SHA's failure

to adequately respond to RAC's immediate request for public records, and would

contribute to similar failures going forward. The trial court thus found it necessary to

order SHA to establish such policies and procedures in order to ensure that RAC was

provided complete relief. See Dare v. Mt. Vernon Inv. Co., 121 Wash. 117, 120, 208

P. 609 (1922) ("[A] court of equity ... has the right to grant such ancillary or

incidental relief as will be necessary to make the relief sought complete."). SHA has

not affirmatively shown that this was an abuse of discretion.

In sum, the trial court acted within its discretion in ordering SHA to properly

redact and electronically produce the grievance hearing decisions that RAC has

requested and to establish needed policies and procedures to govern proper disclosure

of public records.

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4. Statutory Damages and Fees

We affirm the trial court's award of statutory damages. SHA does not dispute

the amount of that award, only whether statutory damages were authorized at all.

Because SHA did violate the PRA, the award of statutory damages was indeed

authorized. See RCW 42.56.550( 4).

We also award RAC its attorney fees on appeal. Under the PRA, any person

who "prevails against an agency" in seeking the right to inspect or copy records "shall

be awarded all costs, including reasonable attorney fees, incurred in connection with

such legal action." Id. This applies to fees incurred on appeal. See, e.g., PAWS II,

125 Wn.2d at 271.

IV. CONCLUSION

We uphold the trial court's orders requiring SHA to redact and disclose the

grievance hearing decisions in electronic format, directing SHA to establish necessary

policies and procedures to ensure compliance with the PRA, and awarding RAC

statutory damages. We also award fees to RAC on appeal. The matter is remanded to

the trial court for further proceedings not inconsistent with this opinion.

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APPENDIX

CURRENT PUBLIC RECORDS ACT EXEMPTIONS
(Chapter 42.56 RCW)

I. CATEGORICAL EXEMPTIONS
a. Categorical-Information Exemptions (certain types of information
exempted categorically)
1. "Personal information in any files maintained for students in
public schools, patients or clients of public institutions or public
health agencies, or welfare recipients" .230(1)
2. "Personal information ... for a participant in a public or nonprofit
program serving or pertaining to children, adolescents, or
students" .230(2)
3. "Information required of any taxpayer in connection with the
assessment or collection of any tax if the disclosure ... [would
be] prohibited to such persons by RCW 84.08.210, 82.32.330,
84.40.020, 84.40.340, or any ordinance authorized under RCW
35.1 02.145" .230(4)(a)
4. "Credit card numbers, debit card numbers, electronic check
numbers, card expiration dates, or bank or other financial account
numbers" .230(5)
5. "Personal and financial information related to a small loan"
.230(6)
6. "Information provided under RCW 46.20.111 that indicates that
an applicant declined to register with the selective service system"
.230(7)(b)
7. "Information revealing the identity of child victims of sexual
assault who are under age eighteen" .240( 5)
8. "Data from the electronic sales tracking system" .240(7)
9. "Information submitted to the statewide unified sex offender
notification and registration program ... by a person for the
purpose of receiving notification regarding a registered sex
offender" .240(8)

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10. "Personally identifying information collected by law enforcement
agencies pursuant to local security alarm system programs and
vacation crime watch programs" .240(9)
11. "Test questions, scoring keys, and other examination data used to
administer a license, employment, or academic examination"
.250(1)
12. "The residential addresses, residential telephone numbers,
personal wireless telephone numbers, personal electronic mail
addresses, social security numbers, and emergency contact
information of employees or volunteers of a public agency, and
the names, dates of birth, residential addresses, residential
telephone numbers, personal wireless telephone numbers,
personal electronic mail addresses, social security numbers, and
emergency contact information of dependents of employees or
volunteers of a public agency that are held by any public agency
in personnel records, public employment related records, or
volunteer rosters, or are included in any mailing list of employees
or volunteers of any public agency" .250(3)
13. "Information that identifies a person who, while an agency
employee: (a) Seeks advice, under an informal process established
by the employing agency, in order to ascertain his or her rights in
connection with a possible unfair practice under chapter 49.60
RCW against the person; and (b) requests his or her identity or
any identifying information not be disclosed" .250(4)
14. "[S]alary and benefit information for maritime employees
collected from private employers" .250(7)
15. "Photographs and month and year of birth in the personnel files of
employees and workers of criminal justice agencies" .250(8)
16. "[T]he contents of real estate appraisals, made for or by any
agency relative to the acquisition or sale of property, until the
project or prospective sale is abandoned or ... all of the property
has been acquired or ... sold" .260
17. "Financial information supplied ... for the purpose of qualifying
to submit a bid or proposal for (a) a ferry system construction or
repair contract ... or (b) highway construction or improvement"
.270(2)
18. "Financial information, business plans, examination reports, and
any information produced or obtained in evaluating or examining

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a business and industrial development corporation organized or
seeking certification under chapter 31.24 RCW" .270(5)
19. "Financial and valuable trade information under RCW 51.36.120"
.270(7)
20. "Financial, commercial, operations, and technical and research
information and data submitted to or obtained by the clean
Washington center in applications for, or delivery of, program
services under chapter 70.95H RCW" .270(8)
21. "Financial and commercial information requested by the public
stadium authority from any person or organization that leases or
uses the stadium and exhibition center" .270(9)
22. "Financial information ... supplied by or on behalf of a person ..
. related to an application for a horse racing license ... liquor
license, gambling license, or lottery retail license" .270(1 O)(a)
23. "Proprietary data, trade secrets, or other information that relates
to: (a) A vendor's unique methods of conducting business; (b) data
unique to the product or services of the vendor; or (c) determining
prices or rates to be charged for services, submitted by any vendor
to the department of social and health services for purposes of the
development, acquisition, or implementation of state purchased
health care" .270(11)
24. "Financial and proprietary information ... provided to the
department of commerce pursuant to RCW 43.330.050(8) ... [or]
provided to the department of commerce or the office of the
governor in connection with the siting ... of that person's
business and until a siting decision is made, identifying
information of any person supplying information ... and the
locations being considered" .270(12)
25. "Financial and proprietary information submitted to or obtained
by the department of ecology or the authority created under
chapter 70.95N RCW to implement chapter 70.95N RCW"
.270(13)
26. "Financial and commercial information provided as evidence to
the department of licensing as required by RCW 19.112.110 or
19.112.120" .270(15)
27. "Information gathered under chapter 19.85 RCW or RCW
34.05.328 that can be identified to a particular business" .270(19)

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28. "Financial and commercial information supplied by or on behalf
of a person, firm, corporation, or entity under chapter 28B.95
RCW relating to the purchase or sale of tuition units and contracts
for the purchase of multiple tuition units" .320(2)
29. "Individually identifiable information received by the workforce
training and education coordinating board for research or
evaluation purposes" .320(3)
30. "The residential addresses and residential telephone numbers of
the customers of a public utility contained in the records or lists
held by the public utility of which they are customers" .330(2)
31. "The personally identifying information of current or former
participants or applicants in a paratransit or other transit service
operated for the benefit of persons with disabilities or elderly
persons" .330(4)
32. "The personally identifying information of persons who acquire
and use transit passes or other fare payment media including, but
not limited to, stored value smart cards and magnetic strip cards"
.330(5)
33. "Any information obtained by governmental agencies that is
collected by the use of a motor carrier intelligent transportation
system or any comparable information equipment attached to a
truck, tractor, or trailer" .330(6)
34. "The personally identifying information of persons who acquire
and use transponders or other technology to facilitate payment of
tolls" .330(7)
3 5. "The personally identifying information of persons who acquire
and use a driver's license or identicard that includes a radio
frequency identification chip or similar technology to facilitate
border crossing" .330(8)
36. "Membership lists or lists of members or owners of interests of
units in timeshare projects, subdivisions, camping resorts,
condominiums, land developments, or cmmnon-interest
communities affiliated with such projects, regulated by the
department of licensing, in the files or possession of the
department" .340
37. "The federal social security number of individuals governed under
chapter 18.130 RCW maintained in the files ofthe department of
health" .350(1)

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38. "The current residential address and current residential telephone
number of a health care provider governed under chapter 18.13 0
RCW maintained in the files of the department" .350(2)
39. "Information obtained by the board of pharmacy as provided in
RCW 69.45.090" .360(1)(a)
40. "Information obtained by the board of pharmacy or the
department of health and its representatives as provided in RCW
69.41.044, 69.41.280, and 18.64.420'' .360(1)(b)
41. "Proprietary financial and commercial information that the
submitting entity, with review by the department of health,
specifically identifies at the time it is submitted and that is
provided to or obtained by the department of health in connection
with an application for, or the supervision of, an antitrust
exemption" .360(1)(d)(i)
42. "Information obtained by the department of health under chapter
70.225 RCW" .360(1)(g)
43. "Information collected by the department of health under chapter
70.245 RCW except as provided in RCW 70.245.150" .360(1)(h)
44. "Cardiac and stroke system performance data submitted to
national, state, or local data collection systems" .360(1 )(i)
45. "Business-related information under RCW 15.86.110" .380(1)
46. "Information provided under RCW 15.54.362" .380(2)
47. "Consigrunent information contained on phytosanitary certificates
issued by the department of agriculture ... or federal
phytosanitary certificates ... or on applications for phytosanitary
certification required by the department of agriculture" .3 80(4)
48. "Information obtained regarding the purchases, sales, or
production of an individual American ginseng grower or dealer,
except for providing reports to the United States fish and wildlife
service under RCW 15.19.080" .380(6)
49. "Information collected regarding packers and shippers of fruits
and vegetables for the issuance of certificates of compliance under
RCW 15.17.140(2) and 15.17.143" .380(7)
50. "Information submitted by an individual or business to the
department of agriculture ... for the purpose of herd inventory
management for animal disease traceability" .3 80(9)

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51. "Results of testing for animal diseases from samples submitted by
or at the direction of the animal owner or his or her designee that
can be identified to a particular business or individual" .380(10)
52. "Names of individuals residing in emergency or transitional
housing that are furnished to the department of revenue or a
county assessor in order to substantiate a claim for property tax
exemption under RCW 84.36.043" .390
53. "Information obtained and exempted or withheld from public
inspection by the health care authority under RCW 41.05.026"
.400(2)
54. "The names and individual identification data of either all owners
or all insureds, or both, received by the insurance commissioner
under chapter 48.102 RCW" .400(3)
55. "Information provided under RCW 48.30A.045 through
48.30A.060" .400(4)
56. "Information provided under RCW 48.05.510 through 48.05.535,
48.43.200 through 48.43.225, 48.44.530 through 48.44.555, and
48.46.600 through 48.46.625" .400(5)
57. "Information provided to the insurance commissioner under RCW
48.110.040(3)" .400(7)
58. "Data filed under RCW 48.140.020, 48.140.030, 48.140.050, and
7.70.140 that, alone or in combination with any other data, may
reveal the identity of a claimant, health care provider, health care
facility, insuring entity, or self-insurer involved in a particular
claim or a collection of claims" .400(10)
59. "Information in a filing of usage-based insurance about the usage-
based component of the rate pursuant to RCW 48.19.040(5)(b)"
.400(20)
60. "The security section of transportation system safety and security
program plans required under RCW 35.21.228, 35A.21.300,
36.01.210, 36.57.120, 36.57A.l70, and 81.112.180" .420(5)
61. "The nesting sites or specific locations of endangered species
designated under RCW 77.12.020, or threatened or sensitive
species classified by rule of the department of fish and wildlife"
.430(2)(a)
62. "Radio frequencies used in, or locational data generated by,
telemetry studies" .430(2)(b)

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63. "The personally identifying information of persons who acquire
recreational licenses under RCW 77.32.010 or commercial
licenses under chapter 77.65 or 77.70 RCW, except name, address
of contact used by the department, and type of license,
endorsement, or tag" .430(3)
64. "Information that the department of fish and wildlife has received
or accessed but may not disclose due to confidentiality
requirements in the Magnuson-Stevens fishery conservation and
management reauthorization act of2006 (16 U.S.C. Sec.
1861(h)(3) and (i), and Sec. 1881a(b))" .430(4)
65. "Information in an application for licensing or a small loan
endorsement under chapter 31.45 RCW regarding the personal
residential address, telephone number of the applicant, or financial
statement" .450
66. "Information relating to ... [r]ailroad company contracts filed
prior to July 28, 1991, with the utilities and transportation
commission under RCW 81.34.070" .480(1)
67. "Personal information in files maintained in a database created
under RCW 43.07 .360" .480(2)
68. "Data collected by the department of social and health services for
the reports required by section 8, chapter 231, Laws of 2003,
except as compiled in the aggregate and reported to the senate and
house of representatives" .480(3)
69. "The following information in plans, records, and reports obtained
by state and local agencies from dairies, animal feeding
operations, and concentrated animal feeding operations, not
required to apply for a national pollutant discharge elimination
system permit is disclosable only in ranges that provide
meaningful information to the public while ensuring
confidentiality of business information regarding: (1) Number of
animals; (2) volume of livestock nutrients generated; (3) number
of acres covered by the plan or used for land application of
livestock nutrients; (4) livestock nutrients transferred to other
persons; and (5) crop yields" .610
b. Categorical-Record Exemptions (certain types of records exempted
categorically)
1. "Documents and related materials and scanned images of
documents and related materials used to prove identity, age,

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residential address, social security number, or other personal
information required to apply for a driver's license or identicard"
.230(7)(a)
2. "Any records of investigative reports prepared by any ... law
enforcement agency pertaining to sex offenses ... which have
been transferred to the Washington association of sheriffs and
police chiefs for permanent electronic retention and retrieval"
.240(3)
3. "License applications under RCW 9.41.070" .240(4)
4. "The statewide gang database" .240(6)
5. "All applications for public employment, including the names of
applicants, resumes, and other related materials submitted with
respect to an applicant" .250(2)
6. "Investigative records compiled by an employing agency
conducting an active and ongoing investigation of a possible
unfair practice ... or of a possible violation of ... laws
prohibiting discrimination in employment" .250(5)
7. "Criminal history records checks for board staff finalist
candidates" .250( 6)
8. "Internal control documents, independent auditors' reports and
financial statements, and supporting documents: (i) Of house-
banked social card game licensees ... or (ii) submitted by tribes
with an approved tribal/state compact for class III gaming"
.270(1 O)(b)
9. "Farm plans developed by conservation districts ... [or]
developed under chapter 90.48 RCW" .270(17)
10. "Preliminary drafts, notes, recommendations, and intra-agency
memorandums in which opinions are expressed or policies
formulated or recommended" .280
11. "Records that are relevant to a controversy to which an agency is
a party but which records would not be available to another party
under the rules of pretrial discovery for causes pending in the
superior courts" .290
12. "Any library record, the primary purpose of which is to maintain
control of library materials, or to gain access to information, that
discloses or could be used to disclose the identity of a library
user" .310

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13. "Financial disclosures filed by private vocational schools under
chapters 28B.85 and 28C.10 RCW" .320(1)
14. "[A]ny records or documents obtained by a state college,
university, library, or archive through or concerning any gift ...
the terms of which restrict or regulate public access to those
records or documents" .320(4)
15. "The annual declaration of intent filed by parents ... for a child to
receive home-based instruction" .320(5)
16. "[R]ecords of any person who belongs to a public utility district or
a municipally owned electrical utility" .335
17. "Records of the entity obtained in an action under RCW
18.71.300 through 18.71.340" .360(1)(e)
18. "Complaints filed under chapter 18.130 RCW after July 27, 1997,
to the extent provided in RCW 18.130.095(1)" .360(1)(f)
19. "All documents, including completed forms, received pursuant to
a wellness program under RCW 41.04.362" .360(1)U)
20. "Client records maintained by an agency that is a domestic
violence program ... or a community sexual assault program or
services for underserved populations" .370
21. "Production or sales records required to determine assessment
levels and actual assessment payments to commodity boards and
commissions ... or required by the department of agriculture"
.380(3)
22. "Financial statements obtained under RCW 16.65.030(1)(d) for
the purposes of determining whether or not the applicant meets
the minimum net worth requirements to construct or operate a
public livestock market" .3 80(8)
23. "Records of international livestock importation that can be
identified to a particular animal, business, or individual received
from the United States department of homeland security or the
United States department of agriculture that are not disclosable by
the federal agency under federal law including 5 U.S.C. Sec. 552"
.380(11)
24. "Records related to the entry of prohibited agricultural products
imported into Washington state or that had Washington state as a
final destination received from the United States department of
homeland security or the United States department of agriculture

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that are not disclosable by the federal agency under federal law
including 5 U.S.C. Sec. 552" .380(12)
25. "Records maintained by the board of industrial insurance appeals
that are related to appeals of crime victims' compensation claims
filed with the board" .400( 1)
26. "Confidential and privileged documents obtained or produced by
the insurance commissioner and identified in RCW 48.37.080"
.400(13)
27. "Records maintained by the employment security department and
subject to chapter 50.13 RCW if provided to another individual or
organization for operational, research, or evaluation purposes"
.410
28. "Discharge papers of a veteran of the armed forces of the United
States filed at the office of the county auditor before July 1, 2002,
that have not been commingled with other recorded documents"
.440(1)
29. "Discharge papers of a veteran of the armed forces of the United
States filed at the office of the county auditor before July 1, 2002,
that have been commingled with other records ... if the veteran
has recorded a 'request for exemption from public disclosure of
discharge papers' with the county auditor" .440(2)
30. "Discharge papers of a veteran filed at the office of the county
auditor after June 30, 2002" .440(3)
31. "All records obtained and all reports produced as required by state
fireworks law, chapter 70.77 RCW" .460
32. "Records of mediation communications that are privileged under
chapter 7.07 RCW" .600
c. Categorical-Hybrid Exemptions (both records and information exempted
categorically)
1. "Financial and commercial information and records supplied by
private persons pertaining to export services ... and by persons
pertaining to export projects" .270(3)
2. "Financial and commercial information and records supplied ...
during application for loans or program services ... or during
application for economic development loans or program services"
.270(4)

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

3. "Any production records, mineral assessments, and trade secrets
submitted by a permit holder, mine operator, or landowner to the
department of natural resources under RCW 78.44.085" .270(16)
4. "The names, residential addresses, residential telephone numbers,
and other individually identifiable records held by an agency in
relation to a vanpool, carpool, or other ride-sharing program or
service" .330(3)
5. "Information and documents created specifically for, and
collected and maintained by a quality improvement committee ...
or by a peer review committee ... or by a quality assurance
committee ... or by a hospital ... for reporting of health care-
associated infections[,] ... a notification of an incident[,] ... and
reports regarding adverse events" .360(1 )(c)
6. "Documents related to infant mortality reviews conducted
pursuant to RCW 70.05.170 are exempt from disclosure as
provided for in RCW 70. 05 .17 0(3) [exempting certain records and
information]" .360(3)(a)
7. "Financial and commercial information and records supplied by
persons (a) to the department of agriculture for the purpose of
conducting a referendum for the potential establishment of a
commodity board or commission; or (b) to the department of
agriculture or commodity boards or commissions ... with respect
to domestic or export marketing activities or individual producer's
production information" .380(5)
8. "Examination reports and information obtained by the department
of financial institutions from banks under RCW 30.04.075, from
savings banks under RCW 32.04.220, from savings and loan
associations under RCW 33.04.110, from credit unions under
RCW 31.12.565, from check cashers and sellers under RCW
31.45.030(3), and from securities brokers and investment advisers
under RCW 21.20.1 00" .400( 6)
9. "Documents, materials, or information obtained by the insurance
commissioner under RCW 48.02.065" .400(8)
10. "Documents, materials, or information obtained by the insurance
commissioner under RCW 48.135.060" .400(11)
11. "Documents, materials, or information obtained by the insurance
commissioner under RCW 48.37.060" .400(12)

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

12. "Documents, materials, or information obtained by the insurance
commissioner under RCW 48.37.140" .400(14)
13. "Documents, materials, or inforniation obtained by the insurance
commissioner under RCW 48.17.595" .400(15)
14. "Documents, materials, or information obtained by the insurance
commissioner under RCW 48.102.051(1) and 48.102.140 (3) and
(7)( a)(ii)" .400(16)
15. "Documents, materials, or information obtained by the insurance
commissioner in the commissioner's capacity as receiver under
RCW 48.31.025 and 48.99.017, which are records under the
jurisdiction and control of the receivership court" .400(17)
16. "Documents, materials, or information obtained by the insurance
commissioner under RCW 48.13.151" .400( 18)
17. "Data, information, and documents provided by a carrier pursuant
to section 1, chapter 172, Laws of 201 0" .400(19)
18. "Data, information, and documents, other than those described in
RCW 48.02.210(2), that are submitted to the office ofthe
insurance commissioner by an entity providing health care
coverage pursuant to RCW 28A.400.275 and 48.02.210" .400(21)
19. "Documents, materials, and information obtained by the insurance
commissioner under RCW 48.05.385(2)" .403
20. "All records, documents, data, and other materials obtained under
the requirements ofRCW 72.09.115 from an existing correctional
industries class I work program participant or an applicant for a
proposed new or expanded class I correctional industries work
program" .470

II. CONDITIONAL EXEMPTIONS
a. Conditional-Information Exemptions (certain types of information
exempted insofar as identified privacy/governmental interests are
implicated)
1. "Personal information in files maintained for employees,
appointees, or elected officials of any public agency to the extent
that disclosure wquld violate their right to privacy" .230(3)
2. "Information required of any taxpayer in connection with the
assessment or collection of any tax if the disclosure of the

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Resident Action Council v. Seattle Housing Authority~ No. 87656-8

information to the other persons would ... violate the taxpayer's
right to privacy or result in unfair competitive disadvantage to the
taxpayer" .23 0(4)(b)
3. "Information revealing the identity of persons who are witnesses
to or victims of crime or who file complaints with investigative,
law enforcement, or penology agencies ... if disclosure would
endanger any person's life, physical safety, or property" .240(2)
4. "Valuable formulae, designs, drawings, [code], and research data
obtained by any agency within five years ... when disclosure
would produce private gain and public loss" .270(1)
5. "Financial and commercial information supplied to the state
investment board by any person when the information relates to
the investment of public trust or retirement funds and when
disclosure would result in loss to such funds or in private loss to
the providers of this information" .270(6)
6. "Financial, commercial, operations, and technical and research
information and data submitted to or obtained by the life sciences
discovery fund authority in applications for, or delivery of, grants
under chapter 43.350 RCW, to the extent that such information, if
revealed, would reasonably be expected to result in private loss to
the providers of this information" .270(14)
7. "Financial, commercial, operations, and technical and research
information and data submitted to or obtained by a health sciences
and services authority in applications for, or delivery of, grants
under RCW 35.104.010 through 35.104.060, to the extent that
such information, if revealed, would reasonably be expected to
result in private loss to providers of this information" .270(18)
8. "Financial and commercial information submitted to or obtained
by the University of Washington ... when the information relates
to investments in private funds, to the extent that such
information, if revealed, would reasonably be expected to result in
loss to the University of Washington consolidated endowment
fund or to result in private loss to the providers of this
information" .270(20)
9. "Financial, commercial, operations, and technical and research
information and data submitted to or obtained by innovate
Washington in applications for, or delivery of, grants and loans
under chapter 43.333 RCW, to the extent that such information, if

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

revealed, would reasonably be expected to result in private loss to
the providers of this information" .270(21)
10. "Confidential proprietary and trade secret information provided to
the commissioner under RCW 48.31 C.020 through 48.31 C.050
and 48.31 C.070" .400(9)
11. "Those portions of records assembled, prepared, or maintained to
prevent, mitigate, or respond to criminal terrorist acts, which are
acts that significantly disrupt the conduct of government or of the
general civilian population of the state or the United States and
that manifest an extreme indifference to human life, the public
disclosure of which would have a substantial likelihood of
threatening public safety" .420(1)
12. "Those portions of records containing specific and unique
vulnerability assessments or specific and unique emergency and
escape response plans at a city, county, or state adult or juvenile
correctional facility, or secure facility for persons civilly confined
... the public disclosure of which would have a substantial
likelihood of threatening the security of a city, county, or state
adult or juvenile correctional facility, secure facility for persons
civilly confined ... or any individual's safety" .420(2)
13. "Commercial fishing catch data from logbooks required to be
provided to the department of fish and wildlife under RCW
77.12. 04 7, when the data identifies specific catch location, timing,
or methodology and the release of which would result in unfair
competitive disadvantage to the commercial fisher providing the
catch data" .4 30( 1)
14. "[L]ocation data that could compromise the viability of a specific
fish or wildlife population, and where at least one of the following
criteria are met: (i) The species has a known commercial or black
market value; (ii) There is a history of malicious take of that
species and the species behavior or ecology renders it especially
vulnerable; (iii) There is a known demand to visit, take, or disturb
the species; or (iv) The species has an extremely limited
distribution and concentration" .430(2)(c)
b. Conditional-Record Exemptions (certain types of records exempted
insofar as identified privacy/governmental interests are implicated)
1. "Records filed with the utilities and transportation commission or
attorney general under RCW 80.04.095 that [would result in

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private loss, including an unfair competitive disadvantage, if
disclosed]" .330(1)
c. Conditional-Hybrid Exemptions (both records and information exempted
insofar as identified privacy/governmental interests are implicated)
1. "Specific intelligence information and specific investigative
records compiled by investigative, law enforcement, and penology
agencies, and state agencies vested with the responsibility to
discipline members of any profession, the nondisclosure of which
is essential to effective law enforcement or for the protection of
any person's right to privacy" .240(1)
III. AMBIGUOUS EXEMPTIONS (arguably categorical or conditional)
1. "Records, maps, or other information identifying the location of
archaeological sites in order to avoid the looting or depredation of
such sites" .300(1)
2. "Records, maps, and other information, acquired during watershed
analysis ... under RCW 76.09.370, that identify the location of
archaeological sites, historic sites, artifacts, or the sites of
traditional religious, ceremonial, or social uses and activities of
affected Indian tribes, are exempt from disclosure under this
chapter in order to prevent the looting or depredation of such
sites" .300(2)
3. "Information compiled by school districts or schools in the
development of their comprehensive safe school plans under
RCW 28A.320.125, to the extent that they identify specific
vulnerabilities of school districts and each individual school"
.420(3)
4. "Information regarding the infrastructure and security of computer
and telecommunications networks, consisting of security
passwords, security access codes and programs, access codes for
secure software applications, security and service recovery plans,
security risk assessments, and security test results to the extent
that they identify specific system vulnerabilities" .420(4)

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Resident Action Council v. Seattle Housing Authority, No. 87656-8

WE CONCUR:

--. -~--~·--:. ·-

45
Resident Action Council v. Seattle Hous. Auth.

No. 87656-8

MADSEN, C.J. (concurring)-Although I concur in the result reached by the

majority, I write separately to state my concern that the majority's opinion exceeds the

scope of the questions before the court. This court was asked to determine if the trial

court erred when it ordered the Seattle Housing Authority (SHA) to produce grievance

hearing decisions pursuant to the Public Records Act (PRA), chapter 42.56 RCW,

ordered SHA to produce responsive records in electronic format and to establish

necessary policies to ensure PRA compliance, and awarded statutory damages. To the

extent that the majority upholds the trial court's actions and awards attorney fees on

appeal, I concur.

The majority, however, goes far beyond reviewing the trial court's actions. For

example, the majority, without briefing or a trial court ruling subject to review, outlines

and charts the procedures an agency should follow in responding to public records

requests. The majority also takes it upon itself to classify various provisions of the PRA

that are unrelated to the issues presented in this case. It appears that the majority is

attempting to advise SHA in the development of the very policies and procedures

required under the injunction. While this guidance may be helpful, it is unnecessary to

the disposition of this case and is improper.
No. 87656-8
Madsen, C.J., concurring

Further, several of the majority's PRA classifications are questionable. For

instance, the majority classifies RCW 42.56.230(4)(a) as a categorical-information

exemption. RCW 42.56.230(4)(a) exempts information required of any taxpayer if

disclosure would be prohibited by RCW 84.08.210, among other statutes. However,

RCW 84.08.210 has language mirroring RCW 42.56.230(4)(b), which the majority

classifies as conditiona1. 1 Thus, it is unclear why subsection (a) should be classified as a

categorical exemption while subsection (b) is classified as conditional when both

provisions require a case-by-case determination. RCW 42.56.230(4)(a) may be more

appropriately classified as a conditional exemption than a categorical exemption.

Additionally, the majority determines that "business plans" under RCW 42.56.270(5) are

information, yet classifies "farm plans" under RCW 42.56.270(17) as records. 2 No

analysis is provided for this distinction, nor is analysis provided for several other

classifications that are equally questionable.

1
RCW 84.08.210 states that "(2) [t]ax information is confidential and privileged ... except as
authorized by this section" and defines tax information as "(1) ... confidential income data and
proprietary business information ... the disclosure of which would be either highly offensive to
a reasonable person and not a legitimate concern to the public or would result in an unfair
competitive disadvantage to the taxpayer." Similarly, RCW 42.56.230(4) exempts
"[i]nformation required of any taxpayer" if the disclosure would "(b) violate the taxpayer's right
to privacy or result in unfair competitive disadvantage to the taxpayer."
2
RCW 42.56.270 exempts certain "financial, commercial, and proprietary information" from
disclosure, and includes "(5) [f]inancial information, business plans, examination reports, and
any information produced or obtained in evaluating or examining a business and industrial
development corporation organized or seeking certification under chapter 31.24 RCW" and
"(17)(a) [f]arm plans developed by conservation districts, unless permission to release the farm
plan is granted by the landowner or operator who requested the plan, or the farm plan is used for
the application or issuance of a permit" and also states that "(b) [±]arm plans developed under
chapter 90.48 RCW and not under the federal clean water act, 33 U.S.C. Sec. 1251 et seq., are
subject to RCW 42.56.610 and 90.64.190."
2
No. 87656-8
Madsen, C.J., concurring

Unwisely, the majority answers questions that the court was not asked to decide

and on which no briefing was provided. Our review was limited to the public disclosure

of SHA grievance hearing decisions and whether the trial court abused its discretion in

ordering the injunctions and damages. In so far as the majority addressed matters outside

of this determination, I disagree.

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No. 87656-8

4