IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF SEATTLE, a Washington
municipal corporation, No. 69129-5-1
Respondent, DIVISION ONE
v. PUBLISHED OPINION
JAMES EGAN, an individual,
Appellant. FILED: February 3, 2014
Grosse, J. — The Public Records Act (PRA), chapter 42.56 RCW, is a
legislatively created right of access to public records. The legislature is free to
restrict or even eliminate access without offending any constitutional protection.
The city of Seattle (City) brought a declaratory action for the limited purpose of
determining the applicability of the privacy act's1 prohibitions against the release
of the records requested here. Such an action is specifically provided for in the
PRA. Because James Egan does not have a constitutional right to the records
requested, his request under the PRA does not fall within the ambit of the anti-
SLAPP2 statute as protected public participation or petition activity. We affirm^ne o
trial court's dismissal. rn
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FACTS ^ =|^p
On September 23, 2011, James Egan requested records from the Settles r^ i—
en o^~
Police Department's Office of Professional Accountability's (OPA) interna*- -•
investigation, regarding complaints against four officers. Included in the request
were 36 "dash-cam" videos that OPA reviewed in the investigations of those
1 Ch. 9.73 RCW.
2Strategic Lawsuits Against Public Participation, RCW 4.24.525.
No. 69129-5-1/2
complaints. The City provided Egan with some records but refused to release 35
of the 36 dash-cam videos, claiming those were exempt from disclosure under
RCW 9.73.090(1 )(c). RCW 9.73.090(1 )(c) prohibits the City from providing
videos to the public until final disposition of any criminal or civil litigation that
arises from the event or events that were recorded.3
Egan disputed the application of that exemption and threatened to sue.
The City filed a motion for declaratory judgment and a preliminary injunction
against Egan. RCW 42.56.540 authorizes a court to enjoin production of a public
record falling under an exemption. The City wanted to resolve any uncertainty
and to avoid the accumulation of potential penalties should Egan delay suing.
The City noted that it was involved in a pending lawsuit in which access to dash-
cam videos was one of the issues.4
Egan filed a motion to strike and dismiss the City's suit under RCW
4.24.525, Washington's anti-SLAPP statute. Egan appeals the trial court's denial
of that motion.
ANALYSIS
A strategic lawsuit against public participation—otherwise known as a
"SLAPP" suit—is a meritless suit filed primarily to chill a defendant's exercise of
3RCW 9.73.090(1 )(c) provides:
No sound or video recording made under this subsection
(1)(c) may be duplicated and made available to the public by a law
enforcement agency subject to this section until final disposition of
any criminal or civil litigation which arises from the event or events
which were recorded. Such sound recordings shall not be divulged
or used by any law enforcement agency for any commercial
purpose.
4 Fisher Broadcasting v. City of Seattle, No. 87271-6, argued before the Supreme
Court on May 14, 2013.
No. 69129-5-1/3
First Amendment rights.5 This court reviews the denial of an anti-SLAPP motion
de novo.6 To prevail on a motion to dismiss Egan was required to prove by a
preponderance of the evidence that his claim was based on an action involving
public participation and petition.7 RCW 4.24.525(2) defines public participation
and petition as
(a) Any oral statement made, or written statement or other
document submitted, in a legislative, executive, or judicial
proceeding or other governmental proceeding authorized by law;
(b) Any oral statement made, or written statement or other
document submitted, in connection with an issue under
consideration or review by a legislative, executive, or judicial
proceeding or other governmental proceeding authorized by law;
(c) Any oral statement made, or written statement or other
document submitted, that is reasonably likely to encourage or to
enlist public participation in an effort to effect consideration or
review of an issue in a legislative, executive, or judicial proceeding
or other governmental proceeding authorized by law;
(d) Any oral statement made, or written statement or other
document submitted, in a place open to the public or a public forum
in connection with an issue of public concern; or
5 Laws of 2010, ch. 118, §1. Under Laws of 2002, ch. 232, § 1, amending
former RCW 4.24.510, "SLAPP suits are designed to intimidate the exercise of
First Amendment rights and rights under [a]rticle I, section 5 of the Washington
[Sjtate Constitution."
6 Citv of Lonqview v. Wallin. 174 Wn. App. 763, 776, 301 P.3d 45, rev, denied.
178 Wn.2d 1020 (2013); see Euaster v. Citv of Spokane. 139 Wn. App. 21, 33,
156 P.3d 912 (2007) (The interpretation and application of a statute are reviewed
de novo.)
7 RCW 4.24.525(4)(b) provides:
A moving party bringing a special motion to strike a claim under this
subsection has the initial burden of showing by a preponderance of
the evidence that the claim is based on an action involving public
participation and petition. If the moving party meets this burden, the
burden shifts to the responding party to establish by clear and
convincing evidence a probability of prevailing on the claim. If the
responding party meets this burden, the court shall deny the
motion.
No. 69129-5-1/4
(e) Any other lawful conduct in furtherance of the exercise of
the constitutional right of free speech in connection with an issue of
public concern, or in furtherance of the exercise of the constitutional
right of petition.
Egan argues that all of the subsections apply to the present case. We disagree.
Here, the City's declaratory judgment action under RCW 42.56.540 asked
the court to determine whether the City had properly applied RCW 9.73.090(1 )(c)
in denying Egan's PRA request for the dash-cam videos. Under that statute,
Egan is a necessary party. Because the legislature's intent in adopting RCW
4.24.525 was to address "lawsuits brought primarily to chill the valid exercise of
the constitutional rights of freedom of speech and petition for the redress of
grievances,"8 this court looks to First Amendment cases to aid in its
interpretation. Egan argues the anti-SLAPP statute applies because the City
sought relief because of Egan's "threat" to sue. But the gravamen of the City's
suit was whether a PRA exemption applied to Egan's original request, not to
suppress Egan's right to bring an action. There was no question that Egan
retained his right to bring an action under the PRA. But Egan was a necessary
party under RCW 42.56.540.9 The City's declaratory action did not interfere with
Egan's right to petition. In John Doe No. 1 v. Reed, the United States Supreme
Court distinguished disclosure requests under the Washington PRA from activity
protected by the First Amendment, stating "the PRA is not a prohibition on
8 Laws of 2010, ch. 118, §1 (a).
9 Burt v. Wash. State Dep't of Corr.. 168 Wn.2d 828, 833, 231 P.3d 196 (2009)
(holding that a person who requests public records is a necessary party and must
be joined in any action brought under RCW 42.56.540).
No. 69129-5-1/5
speech, but a disclosure requirement."10 "[Disclosure requirements may burden
the ability to speak, but they ... do not prevent anyone from speaking."11
The policy of the PRA requires a court to recognize
"that free and open examination of public records is in the public interest, even
though such examination may cause inconvenience or embarrassment." RCW
42.56.550(3).12 That mandate for disclosure is in the public interest and is
circumscribed by the exemptions created by the legislature. Our Supreme Court
noted that although the PRA is a strongly worded mandate for broad disclosure
of public records,"'" . . . "where an exemption applies, disclosure is not
appropriate."13 RCW 42.56.070.
The United States Supreme Court revealed that there is not a general
constitutional right of access to government information.14 Accordingly,
Washington is not compelled by the First Amendment to provide information to
Egan. Instead its obligation to provide the public records to him arises under
state law.15
10 561 U.S. 186, 130 S. Ct. 2811, 2813-14, 177 L. Ed. 2d 493 (2010).
11 Reed. 130 S. Ct. at 2818 (alterations in original).
12 Neighborhood Alliance of Spokane County v. County of Spokane. 172 Wn.2d
702,261 P.3d 119(2011).
13 Yakima v. Yakima Herald-Republic. 170 Wn.2d 775, 791, 246 P.3d 768 (2011)
(quoting Soter v. Cowles Publ'q Co.. 162 Wn.2d 716, 731, 174 P.3d 60 (2007)
quoting Hearst Corp. v. Hoppe. 90 Wn.2d 123, 127, 580 P.2d 246 (1978)).
14 See Houchins v. KQED. Inc.. 438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553
(1978) (holding that the right of access to government information or sources of
information within the government's control is not mandated by the First or
Fourteenth Amendments).
15 Shero v. Citv of Grove. CM. 510 F.3d 1196, 1201 (10th Cir. 2007).
No. 69129-5-1/6
Egan relies on Equilon Enterprises. LLC v. Consumer Cause. Inc..16 as
support for his claim that the City's action for declaratory and injunctive relief
arises from his protected speech. There, the consumer group defendant served
the oil company with notices of intent to sue for alleged violation of Proposition
65 for groundwater pollution. Instead of requesting the consumer group to clarify
its notice, the oil company filed a lawsuit for declaratory and injunctive relief,
seeking a declaration that the notice did not comply with the California Code of
Regulations.17 The trial court granted the consumer group's motion to strike the
complaint under the anti-SLAPP statute.18 The Court of Appeals and Supreme
Court agreed, ruling that the plaintiffs action for declaratory and injunctive relief
arose from the consumer group's activity in furtherance of its constitutional rights
of speech or petition. Those facts are markedly different than the facts of this
case. Here, there was a dispute over whether the City correctly denied Egan's
requests, and the City sought guidance in the manner prescribed by the PRA
statute.
This case is more similar to a subsequent case dealing with Proposition
65. In American Meat Institute v. Leeman.19 the California court held that a
declaratory judgment action brought by two trade associations was not a SLAPP
action, where the associations sought a determination that the Federal Meat
Inspection Act preempted Proposition 65. In so holding the court noted:
16 29 Cal. 4th 53, 52 P.3d 685 (2002)
17 Eguilon. 29 Cal. 4th at 57-58.
18
Eguilon. 29 Cal. 4th at 57.
19 180 Cal. App. 4th 728, 739, 102 Cal. Rptr. 3d 759, 767 (2009).
No. 69129-5-1/7
One purpose of declaratory relief is "to liquidate doubts with
respect to uncertainties or controversies which might otherwise
result in subsequent litigation.". . . "One test of the right to institute
proceedings for declaratory judgment is the necessity of present
adjudication as a guide for plaintiffs future conduct in order to
preserve his legal rights."1201
Likewise Egan's reliance on Dove Audio. Inc. v. Rosenfeld. Mever &Susman21 is
misplaced. There, the California court held that a letter from a law firm soliciting
celebrity support for efforts to file a complaint against a publishing firm for alleged
failure to pay royalties on audio recordings of prominent celebrities fell within the
scope of the anti-SLAPP statute. In Dove, the underlying activity was the
lawyer's letter, not a controversy between the parties.
The fact that one party's protected activity may have triggered the other
party's cause of action does not necessarily mean the cause of action arose from
the protected activity. In Citv of Cotati v. Cashman.22 the parties disputed the
validity of a rent stabilization ordinance applicable to mobile home parks.
Owners of the mobile home parks sued the city in federal court challenging the
ordinance. In response to that suit, the city filed its own action in state court.
The owners then claimed that the city's state court action arose out of their
pursuit of the federal action which qualified as a protected petitioning activity and
therefore fell within the penumbra of the anti-SLAPP statute. In determining that
it was not a SLAPP action, the California Supreme Court explained that even if
the filing of the federal action triggered the city's decision to file its own action in
20 Leeman. 102 Cal. Rptr. 3rd at 768-69 (internal quotation marks omitted)
(quoting Mever v. Sprint Spectrum L.P., 45 Cal. 4th 634, 647, 200 P.3d 295, 303-
04 (2009)).
21 47 Cal. App. 4th 777, 54 Cal. Rptr. 2d 830 (1996).
22 29 Cal. 4th 69, 52 P.3d 695 (2002).
No. 69129-5-1/8
state court, the state court claims were not based on the federal court action.
Instead both actions arose from the parties' underlying controversy.23 Here, as in
Cashman. although the "threat" of a suit may have pushed the City to act it was
not the "gravamen" of the underlying action.
Further, to hold that the anti-SLAPP statue would prohibit the City from
seeking declaratory and injunctive relief would vitiate the section of the PRA
expressly providing for such actions. We must read the PRA and the anti-SLAPP
statute to be in harmony:
The principle of reading statutes in pari materia applies where
statutes relate to the same subject matter. . . . Such statutes must
be construed together. . . . In ascertaining legislative purpose,
statutes which stand in pari materia are to be read together as
constituting a unified whole, to the end that a harmonious, total
statutory scheme evolves which maintains the integrity of the
respective statutes.1241
Because we construe the PRA to allow the City to seek declaratory and
injunctive relief and we determine that the City's action was not primarily
concerned with limiting Egan's protected activity, we conclude the anti-SLAPP
statute does not apply here.
We affirm the trial court's dismissal of Egan's anti-SLAPP motion.
J
WE CONCUR:
3 ^ ^y-* I
23 Cashman. 52 P.3d at 703.
24 Hallauerv. Spectrum Props., Inc.. 143 Wn.2d 126, 146, 18 P.3d 540 (2001)
(internal quotation marks and citations omitted).
8
James C. Egan v. City Of Seattle
Combined Opinion