Kevin Anderson v. D.s.h.s., State Of Wa ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
November 15, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
KEVIN ANDERSON, No. 47660-6-II
Appellant,
v.
DEPARTMENT OF SOCIAL AND HEALTH PUBLISHED OPINION
SERVICES, DIVISION OF CHILD
SUPPORT,
Respondent.
SUTTON, J. — Kevin Anderson, a noncustodial parent, appeals the superior court’s
summary judgment order dismissing his claim that the Department of Social and Health Services,
Division of Child Support (DCS) violated the Public Records Act (PRA)1 when it withheld and
redacted child support records and withheld an attorney-client email string. Anderson argues that
the superior court erred in ruling that child support records were categorically exempt from
disclosure under RCW 26.23.120(1) and that the attorney-client privilege precluded disclosure of
certain emails. Anderson requests attorney fees and costs on appeal under RAP 18.1 and RCW
42.56.550(4).
We hold that RCW 26.23.120, which governs child support records, falls within the “other
statutes” exemption under RCW 42.56.070(1) of the PRA and is consistent with the PRA. We
1
Chapter 42.56 RCW.
No. 47660-6-II
further hold that the email string is protected under attorney-client privilege and is exempt from
disclosure under RCW 5.60.060(2)(a).2 Because DCS’s responses were proper and DCS did not
violate the PRA, there is no basis for a PRA penalty and the superior court properly granted
summary judgment dismissing Anderson’s PRA claim against DCS. We affirm.
FACTS
I. ANDERSON’S PRA REQUEST FOR CHILD SUPPORT CASE RECORDS
On July 1, 2013, Anderson submitted a public records request to DCS. Anderson requested
several child support records, including (1) his “complete case comment history printout”3 and (2)
“[a] copy of the e-mail sent from Judy Rupo[4] [sic] to King County Prosecutor’s Office on 3/10/10
regarding my case.” Clerk’s Papers (CP) at 171.
DCS responded to Anderson’s request on July 12, 2013, advising him that DCS records
are “private and confidential” under RCW 26.23.120 and that it would take approximately 45 days
to research, prepare, and provide responsive documents. CP at 166. On September 11, DCS
further responded to Anderson’s request, producing his case comment records, an exemption log,
and a key explaining the exemptions DCS relied upon for each redaction. DCS explained that,
because the information was exempt from disclosure under RCW 26.23.120 and Anderson did not
2
The legislature amended RCW 5.60.060 in 2016. Laws of 2016, ch. 24, § 1. This amendment
did not change subsection (2)(a). Accordingly, we cite to the current version of the statute.
3
A “case comment history” is a compilation of the case notes associated with a given DCS case.
CP at 163.
4
Judy Roppo is a child support enforcement officer with DCS.
2
No. 47660-6-II
have a court order or the custodial parent’s consent, it had redacted the custodial parent’s
confidential information from the case comments. DCS also explained that it had redacted other
private or confidential information related to the custodial parent’s address and contact
information.5 DCS further explained that the email string between Roppo and the King County
Prosecuting Attorney’s Office was a protected attorney-client communication under RCW
5.60.060. DCS again informed Anderson that DCS records were private and confidential under
RCW 26.23.120 and that he could file an administrative appeal of any denial of disclosure with
the Economic Services Administration (ESA) within the Department of Social and Health
Services.
Anderson filed an administrative appeal with the ESA challenging DCS’s responses to his
PRA request. He asked DCS to clarify the specific exemption claimed for the email sent from
Roppo. DCS responded that “the email is being withheld under RCW 5.60.060(2)(a),” the
attorney-client privilege, and affirmed its initial withholding. CP at 195.
II. ANDERSON’S PRA COMPLAINT
While Anderson’s administrative appeal was pending, he filed a PRA complaint in Pierce
County Superior Court alleging that DCS’s responses to his July 1, 2013 records request violated
the PRA. His complaint did not mention the case comment redactions DCS provided to him in
5
RCW 26.23.120; RCW 74.04.060, .062; WAC 388-14A-2107, -2135.
3
No. 47660-6-II
September 2013.6 It appears that Anderson first raised concerns regarding the redactions in
discovery requests filed in January 2015.
A. DISCOVERY
After receiving Anderson’s January 2015 discovery requests, DCS reviewed the case
comment history provided to Anderson in September 2013 and produced a revised case comment
history in February 2015. In its cover letter, DCS again informed Anderson that “all DCS records,
including the case comments history that you requested are exempt from production under the
PRA and may be disclosed only under RCW 26.23.120 and related rules.” CP at 236. DCS also
stated that “records and information in the case comment history have been redacted where you
are not the subject of or did not provide the information.” CP at 236.
B. SUMMARY JUDGMENT MOTIONS
Prior to receiving the revised case comment history, Anderson filed a motion asking the
superior court to rule that DCS’s response to his July 1, 2013 request violated the PRA. In response
to Anderson’s motion, DCS filed a cross-motion for partial summary judgment, citing to RCW
26.23.120 as the governing statute not the PRA. The superior court denied both motions, stating
that DCS’s motion was untimely but that it could move for summary judgment at a later date.
C. WITHHOLDING OF THE ATTORNEY-CLIENT PRIVILEGED EMAIL COMMUNICATIONS
In an attempt to resolve the outstanding issues, DCS sent a letter to Anderson in March
2015 explaining the reasons for the redactions in Anderson’s case comments and identifying RCW
6
Anderson’s complaint focused on, among other things, the email between DCS and the King
County prosecutor’s office. There was, however, no mention of the case comment redactions
provided in September 2013 in Anderson’s complaint.
4
No. 47660-6-II
26.23.120 as the statutory authority for the redactions. DCS also provided a redacted copy of the
email string between Roppo and the prosecutor7 and explained that the email string was exempt
from disclosure under the PRA because it was a privileged attorney-client communication under
RCW 5.60.060(2).
D. DCS’S SECOND SUMMARY JUDGMENT MOTION
On April 8, 2015, DCS filed a second motion for summary judgment, requesting dismissal
of Anderson’s PRA claims as a matter of law because RCW 26.23.120, not the PRA, governed
disclosure of child support records. The superior court granted summary judgment in favor of
DCS, dismissing Anderson’s PRA claims. In its written order, the superior court ruled that
Anderson’s request for his case comment history was not disclosable under the PRA and that it
was “being exempt[ed] from disclosure by RCW 26.23.120(1).”8 CP at 58. The superior court
also ruled that the requested email string between Roppo and the King County prosecutor was
“protected from disclosure by attorney/client privilege, RCW 5.60.060(2).” CP at 58.
Anderson appeals the superior court’s ruling on the case comment history and on the
Roppo/King County prosecutor email string.
ANALYSIS
Anderson argues that the superior court erred in granting summary judgment and
dismissing his PRA claim. We hold that RCW 26.23.120, which governs the disclosure of child
7
The email string showed the sender and recipient of each email, but DCS withheld the contents
of the emails.
8
The superior court’s ruling also addressed Anderson’s other PRA requests which are not before
this court on appeal.
5
No. 47660-6-II
support records, falls within the “other statutes” exemption under RCW 42.56.070(1) of the PRA;
that RCW 26.23.120 supplements and is consistent with the PRA; that, because DCS’s responses
to the records request were proper, it did not violate the PRA; and that the email string is a protected
attorney-client communication exempt from disclosure under RCW 5.60.060(2)(a). Thus, the
superior court did not err in granting summary judgment and dismissing Anderson’s PRA claim.
I. STANDARDS OF REVIEW
We review agency actions under the PRA de novo, taking into account the PRA’s policy
that “free and open examination of public records is in the public’s interest, even [though]
examination may cause inconvenience or embarrassment.” Neighborhood Alliance of Spokane
County v. County of Spokane, 172 Wash. 2d 702, 715, 261 P.3d 119 (2011); RCW 42.56.550(3).
Summary judgment orders are also subject to de novo review, and we construe the facts in the light
most favorable to the non-moving party. Sanders v. State, 169 Wash. 2d 827, 844-45, 240 P.3d 120
(2010). Summary judgment is appropriate when there are no genuine issues of material fact 9 and
the moving party is entitled to judgment as a matter of law. Sanders, 169 Wash. 2d at 844.
II. CHILD SUPPORT RECORDS, RCW 26.23.120
A. THE PUBLIC RECORDS ACT – LEGAL PRINCIPLES
We first address whether RCW 26.23.120 falls within the “other statutes” exemption under
RCW 42.56.070(1) of the PRA. This is an issue of statutory interpretation. We review questions
of law and statutory construction de novo. Wright v. Dep’t of Soc. & Health Servs., 176 Wash. App.
9
The parties do not dispute any of the facts underlying the case. Anderson merely argues that the
court misinterpreted and misapplied the PRA and RCW 26.23.120 to DCS’s disclosure and
production of the requested documents.
6
No. 47660-6-II
585, 594, 309 P.3d 662 (2013). When a statute is unambiguous, we look to a statute’s plain
language alone to determine the legislature’s intent. Wright, 176 Wash. App. at 594.
“The PRA is a strongly worded mandate for broad disclosure of public records.”
Neighborhood Alliance, 172 Wash. 2d at 714. “‘The general purpose of the exemptions to the
[PRA’s] broad mandate of disclosure is to exempt from public inspection those categories of public
records most capable of causing substantial damage to the privacy rights of citizens.’” Deer v.
Dep’t of Soc. & Health Servs., 122 Wash. App. 84, 90, 93 P.3d 195 (2004) (quoting Limstrom v.
Ladenburg, 136 Wash. 2d 595, 607, 963 P.2d 869 (1998)). Because the PRA mandates broad public
disclosure, we liberally construe the PRA in favor of disclosure and narrowly construe its
exemptions. White v. Clark County, 188 Wash. App. 622, 631, 354 P.3d 38 (2015), review denied,
185 Wash. 2d 1009 (2016). There are three sources of PRA exemptions, (1) the PRA itself, (2) the
“other statutes” exemption, and (3) the Washington Constitution. White, 188 Wash. App. at 630-31.
The PRA generally does not allow withholding of public records in their entirety. Instead
an agency subject to the PRA must segregate individual records and must withhold only those
portions of the records that fall under a specific exemption. Progressive Animal Welfare Soc’y v.
Univ. of Wash., 125 Wash. 2d 243, 261, 884 P.2d 592 (1994) (PAWS II). The agency bears the burden
to establish that an exemption to production applies. RCW 42.56.550(1); Sargent v. Seattle Police
Dep’t, 179 Wash. 2d 376, 385-86, 314 P.3d 1093 (2013).
7
No. 47660-6-II
B. OTHER STATUTES EXEMPTION TO THE PRA
“The ‘other statutes’ exemption, [RCW 42.56.070(1)], incorporates into the [PRA] other
statutes which exempt or prohibit disclosure of specific information or records.”10 PAWS II, 125
Wash. 2d at 261-62. The “other statutes” exemption supplements the PRA when the statute in
question is not in conflict with the PRA; if there is a conflict between the PRA and the other
statute(s), the PRA governs. RCW 42.17.920; PAWS II, 125 Wash. 2d at 261-62.
RCW 26.23.120(1) expressly provides,
Any information or records concerning individuals who owe a support obligation
or for whom support enforcement services are being provided which are obtained
or maintained by the Washington state support registry, the division of child
support, or under chapter 74.20 RCW shall be private and confidential and shall
only be subject to public disclosure as provided in subsection (2) of this section.
(Emphasis added.) DCS argues that RCW 26.23.120(1) falls within the “other statutes” exemption
to the PRA. We agree with DCS.
Under RCW 26.23.120(1), child support records, although private and confidential, are
subject to public disclosure only as provided in RCW 26.23.120(2). RCW 26.23.120(2) permits
the DCS secretary to adopt rules regarding disclosure and confidentiality, and requires the DCS
secretary to “provide for disclosure of the information and records, under appropriate
10
RCW 42.56.070(1) provides, “Each agency, in accordance with published rules, shall make
available for public inspection and copying all public records, unless the record falls within the
specific exemptions of subsection (6) of this section, this chapter, or other statute which exempts
or prohibits disclosure of specific information or records. To the extent required to prevent an
unreasonable invasion of personal privacy interests protected by this chapter, an agency shall
delete identifying details in a manner consistent with this chapter when it makes available or
published any public record; however, in each case, the justification for the deletion shall be
explained fully in writing.” (Reviser’s note omitted.)
8
No. 47660-6-II
circumstances.” RCW 26.23.120(2)-(3).11 Other statutes, like RCW 13.50.100(2),12, 13
contain
similar language that protect information designated as confidential by statute while providing for
public disclosure under appropriate circumstances. In Wright and Deer, we addressed whether
RCW 13.50.100(2), falls within the “other statutes” exemption to the PRA, and we find our
analysis instructive here.
Similar to RCW 26.23.120(1), RCW 13.50.100(2) expressly provides that juvenile justice
and care records “shall be confidential and shall be released only pursuant to this section and RCW
13.50.010.” See Wright, 176 Wash. App. at 596-97; Deer, 122 Wash. App. at 91-92. Additionally,
RCW 13.50.010 provides that “[e]ach juvenile justice or care agency shall implement procedures
consistent with the provisions of this chapter to facilitate inquiries concerning records,” and sets
out several additional provisions addressing how individuals could challenge the juvenile justice’s
or care agency’s decision. RCW 13.50.010(4)-(7).
In Wright and Deer, we held that the language in chapter 13.50 RCW provides an exception
to the general rule that all public records are subject to disclosure, and that this disclosure statute
11
Anderson argues that RCW 26.23.120(7) negates DCS’s argument that RCW 26.23.120 solely
governs disclosure of child support records. RCW 26.23.120(7) provides, “Nothing in this section
shall be construed as limiting or restricting the effect of RCW 42.56.070(9). Nothing in this section
shall be construed to prevent the disclosure of information and records if all details identifying an
individual are deleted or the individual consents to the disclosure.” Anderson misconstrues the
meaning by divorcing the first sentence from the second sentence because the statutory provisions
should be read together along with other provisions of the PRA. C.J.C. v. Corp. of Catholic Bishop
of Yakima, 138 Wash. 2d 699, 708, 985 P.2d 262 (1999). His argument fails.
12
Ch. 13.50 RCW – Keeping and Release of Records by Juvenile Justice or Care Agencies.
13
The legislature amended RCW 13.50.100 in 2014 and 2013. Laws of 2014, ch. 175, § 8; Laws
of 2013, ch. 23, § 7. These amendment did not change subsection (2). Accordingly, we cite to the
current version of the statute.
9
No. 47660-6-II
was consistent with the purpose of the PRA, “resolv[ing] the potential conflict between the
disclosure of juvenile records and [privacy concerns].” Deer, 122 Wash. App. at 91; Wright, 176
Wash. App. at 597-98. Because RCW 13.50.100(2) expressly provides that juvenile justice and care
records “shall be confidential and shall be released only pursuant to this section and RCW
13.50.010,” we concluded that the agency’s responses did not violate the PRA and that a PRA
penalty was not appropriate. See Wright, 176 Wash. App. at 596-97; Deer, 122 Wash. App. at 91-92.
RCW 26.23.120 likewise provides an exception to the general rule that all public records
are subject to disclosure which furthers “the [PRA’s] policy of allowing access to records held by
government agencies but simultaneously protects the privacy of [custodial and non-custodial
parents and their dependent minor children].” Deer, 122 Wash. App. at 93. Thus, we hold that RCW
26.23.120(1) falls within the “other statutes” exemption under RCW 42.56.070(1) of the PRA and
is consistent with the PRA.
C. DCS’s RESPONSES TO THE REQUEST FOR CASE COMMENT HISTORY
Anderson argues that DCS’s explanations for its redactions to the case comment history
were inadequate. But in responding to Anderson’s PRA request, as explained above, DCS
followed the confidentiality provisions of RCW 26.23.120(1), an “other statutes” exemption under
the PRA. DCS provided records and information about Anderson’s own child support case,
including a case comment printout and redacted confidential identifying information about the
10
No. 47660-6-II
mother and children in the child support records as required under RCW 26.23.120(1). Thus,
DCS’s responses and explanations for its redactions were proper.14
III. ATTORNEY-CLIENT EMAIL WITHHOLDING
Anderson also argues that DCS’s withholding and redacting an email string between Roppo
and the King County prosecutor’s office violates the PRA because the email was not exempt from
disclosure. We hold that the email string as redacted is a protected attorney-client communication
exempt from disclosure under RCW 5.60.060(2)(a).15
In child support cases, the attorney general or prosecuting attorney represents DCS when
DCS initiates or appears as a party to a child support action; thus, the prosecutor’s office represents
DCS as a client. See RCW 74.20.220. Communication between a state agency and the
14
Anderson also argues that DCS violated the PRA by (1) citing to multiple authorities to explain
its redactions to his case comment history and (2) initially withholding Anderson’s garnishment
information contained in his case comment history and then producing the garnishment
information after he filed the PRA lawsuit. He argues that this delay from July 1, 2013 until
February 6, 2015 subjects DCS to a PRA penalty.
DCS cited the proper statutory authority for each of its redactions to the case comment
history. Although DCS attached a list of 11 possible justifications for the redactions to the case
comment history, it tied each redaction to a specific justification. To the extent DCS cited multiple
statutes and regulations within each justification, each of those citations exempted the same type
of confidential information and explained the basis for its redactions based on this authority. Thus,
Anderson does not show that DCS’s citing to multiple authorities was improper.
Anderson also argues that garnishment information contained in the case comment history
was wrongfully withheld in violation of the PRA as demonstrated by DCS’s later production of
this information. But, as analyzed above, DCS’s responses were proper under RCW 26.23.120
and cannot be the basis for a PRA penalty regardless of when disclosure occurred.
15
RCW 5.60.060(2)(a) provides,
An attorney or counselor shall not, without the consent of his or her client, be
examined as to any communication made by the client to him or her, or his or her
advice given thereon in the course of professional employment.
11
No. 47660-6-II
prosecutor’s office seeking advice is protected attorney-client communications and is not
disclosable under the PRA. See Kleven v. King County Prosecutor, 112 Wash. App. 18, 24-25, 53
P.3d 516 (2002); West v. Dep’t of Nat. Res., 163 Wash. App. 235, 246-47, 258 P.3d 78 (2011); RCW
5.60.060(2), (5).
In response to Anderson’s records request, DCS disclosed the existence of the email string
between Roppo, a DCS employee, and the deputy prosecutor, but it redacted the contents of the
email string. The opening email from Roppo asks the deputy prosecutor to review Anderson’s
case because DCS is seeking legal advice about the case.
This email string is a privileged attorney-client communication between DCS and the King
County prosecutor and is exempt from disclosure under RCW 5.60.060(2). DCS’s responses in
providing a redacted copy and explaining its redactions were proper. Thus, we hold that the
superior court did not err when it found that the email string was protected from disclosure as
attorney-client privilege under RCW 5.60.060(2).16
ATTORNEY FEES
Finally, Anderson argues that, as a prevailing party, he is entitled to attorney fees and costs
on appeal under RAP 18.1 and RCW 42.56.550. Because he is not the prevailing party, we deny
his request for attorney fees and costs on appeal.
16
Anderson also argues that RCW 26.23.120 cannot categorically exempt child support records
from disclosure under the PRA as the superior court ruled. We note that we are not holding that
RCW 26.23.120 is a categorical exemption, but rather, that RCW 26.23.120 provides an exemption
to the general rule that all public records are subject to disclosure, and that RCW 26.23.120 falls
within the “other statutes” exemption under RCW 42.56.070(1) of the PRA.
In addition, in his opening brief, Anderson also assigns error to the superior court’s alleged
refusal to acknowledge certain evidence he presented. But Anderson presents no argument related
to this issue, so we do not address this assignment of error. RAP 10.3(a)(6).
12
No. 47660-6-II
CONCLUSION
We hold that RCW 26.23.120, which governs child support records, falls within the “other
statutes” exemption under RCW 42.56.070(1) of the PRA and that RCW 26.23.120 supplements
and is consistent with the PRA. We further hold that DCS properly withheld the email string
because it was protected under the attorney-client privilege and is exempt from disclosure under
RCW 5.60.060(2)(a). Because DCS’s responses were proper under RCW 26.23.120 and DCS did
not violate the PRA, there is no basis for a PRA penalty. The superior court properly granted
summary judgment dismissing Anderson’s PRA claim against DCS. We affirm.
SUTTON, J.
We concur:
JOHANSON, P.J.
LEE, J.
13