Building Industry Ass'n v. Department of Labor & Industries
Building Industry Ass'n v. Department of Labor & Industries
Opinion of the Court
Building Industry Association of Washington (BIAW) and two newspaper industry associations sought disclosure of ergonomics-related voluntary compliance reports under the Washington public disclosure act (PDA). They appeal the trial court’s decision to award them PDA penalties on a per day, not per record, basis. The Department of Labor and Industries (L&I) cross-appeals the trial court’s decision to order disclosure of the reports, contending that the Washington Industrial Safety and Health Act (WISHA), chapter 49.17 RCW, exempts public disclosure of these reports. We hold that the legislature expressly exempted these WISHA reports from public disclosure. Therefore, we do not address the parties’ arguments regarding the proper calculation of the penalty amount, and we reverse the penalty, attorney fee, and costs awards.
FACTS
On March 26, 2002, the BIAW
On September 4, 2002, Allied Daily Newspapers of Washington
On October 25, 2002, the trial court orally ruled that the reports “are available for public inspection at [L&I].” Report of Proceedings (RP) (Oct. 25, 2002) at 29.
*661 [OJnce [L&I] is required to disclose to specific individuals, other than employers from whom they obtained the information for their voluntary service reports,. . . they take themselves outside the confidentiality protection that is earlier provided in the statute.
RP (Oct. 25, 2002) at 29. Although the court required disclosure of the reports, it also stated that it would permit some redaction.
L&I submitted its “Proposed Principles of Redaction” on November 1. 3 CP at 509. But the trial court found that the submission was not done in good faith and directed that only individual employee names be redacted from the reports. L&I disclosed the consultation reports on November 18, 2002. At that time, the court had yet to award penalties or fees under the PDA.
A penalty hearing was held on March 5, 2003. The trial court followed Division One’s January 6, 2003 opinion in Yousoufian v. Office of King County Executive, 114 Wn. App. 836, 60 P.3d 667, review granted, 150 Wn.2d 1001 (2003), and did not award penalties per record.
BIAW and the Newspapers appealed, contending that the PDA penalty should be calculated on a per-record basis. L&I cross appealed, challenging the trial court’s determination that the records were disclosable and the corresponding award of penalties, attorney fees, and costs for nondisclosure.
To protect worker health and safety interests, the legislature exempted WISHA’s voluntary ergonomic consulta
ANALYSIS
The PDA
The PDA was passed by initiative in 1972. See Laws of 1973, ch. 1; RCW 42.17.250-.348. The act requires that all state and local agencies disclose any public record upon request unless it falls within certain specific enumerated exemptions. RCW 42.17.260(1). These include the exemptions set out in RCW 42.17.260(6), RCW 42.17.310, and RCW 42.17.315, as well as any “other statute which exempts or prohibits disclosure of specific information or records.” RCW 42.17.260(1) (emphasis added).
The central purpose of the PDA is “ ‘preservation of the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions.’ ” King County v. Sheehan, 114 Wn. App. 325, 335, 57 P.3d 307 (2002) (quoting Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994) (PAWS II)); RCW 42.17.251. The PDAis “a strongly worded mandate for broad disclosure of public records.” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978); Amren v. City of Kalama, 131 Wn.2d 25, 31, 929 P.2d 389 (1997); PAWS II, 125 Wn.2d at 251. We liberally construe the act’s disclosure provisions and narrowly construe its exemptions. Sheehan, 114 Wn. App. at 336 (citing RCW 42.17.251; RCW 42-.17.010(11); PAWS II, 125 Wn.2d at 251; Amren, 131 Wn.2d at 31). An agency must prove that its refusal to disclose requested information “is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.” RCW 42.17.340(1); Sheehan, 114 Wn. App. at 336.
If the requested material contains both exempt and nonexempt material, the exempt material may be
L&I argues that to protect worker health and safety the legislature enacted RCW 49.17.250(3) to exempt public disclosure of the records of voluntary ergonomic consultations. The trial court concluded that requiring these reports to be made available to employees and their collective bargaining representatives vitiated confidentiality: “Because of this requirement, the reports are no longer confidential and are subject to public inspection and disclosure pursuant to RCW ch. 42.17 thirty days after they are received by the employer.” CP at 511 (conclusion of law 5). L&I asserts that the trial court erred.
Because the record here consists of affidavits, memoranda, and other documentary evidence, we stand in the same position as the trial court and our review of the record is de novo. Violante v. King County Fire Dist. No. 20, 114 Wn. App. 565, 568, 59 P.3d 109 (2002) (citing PAWS II, 125 Wn.2d at 252). See Hangartner v. City of Seattle, 151 Wn.2d 439, 447, 90 P.3d 26 (2004). By enacting RCW 49.17.250(3), the legislature exempted L&I’s voluntary er
WISHA
The legislature designed WISHA’s voluntary consultation system to improve workers’ safety by encouraging cooperative efforts by employers and L&I. RCW 49-.17.050(8) establishes a voluntary compliance program for employers, which includes on-site health and safety consultations with L&I representatives. At an employer’s request, L&I will conduct consultation visits to address “the interpretation and applicability of safety and health standards to the conditions, structures, machines, equipment, apparatus, devices, materials, methods, means, and practices in the [requesting] employer’s work place.” RCW 49.17.250(1). L&I’s representative consults with the employer and employees to make recommendations to eliminate workplace hazards. RCW 49.17.250(2). The visit is a consultation, not an inspection. No civil penalties will be assessed unless the visit discloses a serious violation of the health and safety standards
In 1991, the legislature amended WISHA to exempt these employer-requested consultations from public inspection
Information obtained by [L&I] as a result of employer-requested consultation and training services shall be deemed confidential and shall not be open to public inspection. Within thirty days of receipt, the employer shall make voluntary services reports available to employees or their collective bargaining representatives for review. Employers may satisfy the availability requirement by requesting a copy of the reports from [L&I].
RCW 49.17.250(3). See Laws of 1991, ch. 89, § 2. The legislature enacted this amendment with full knowledge of existing public disclosure laws. Thurston County v. Gorton, 85 Wn.2d 133, 138, 530 P.2d 309 (1975) (legislature is presumed to have full knowledge of existing laws).
Construction of a statute is a question of law which we review de novo under the error of law standard. City of Pasco v. Pub. Employment Relations Comm’n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992); Inland Empire Distrib. Sys. v. Util. & Transp. Comm’n, 112 Wn.2d 278, 282, 770 P.2d 624 (1989). We give effect to the intent of the legislature, and begin our review with the statute’s plain language. Lacey Nursing Ctr., Inc. v. Dep’t of Revenue, 128 Wn.2d 40, 53, 905 P.2d 338 (1995). The “plain meaning” rule includes not only the ordinary meaning of the words, but also the underlying legislative purposes. Wash. Pub. Ports Ass’n v. Dep’t of Revenue, 148 Wn.2d 637, 645, 62 P.3d 462 (2003). A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable. First Class Cartage, Ltd. v. Fife Serv. & Towing, Inc., 121 Wn. App. 257, 266, 89 P.3d 226 (2004) (citing Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239-40, 59 P.3d 655 (2002), cert. denied, 538
Here, the plain language of the WISHA statute prohibits public inspection of L&I ergonomic consultations voluntarily requested by employers. The general mandate that the PDA be liberally construed
The Newspapers assert that the statute’s required disclosure of the consulting reports (to a limited group of affected employees and their union representatives) vitiated the statute’s confidentiality provision. They argue that “when the contents of a document are provided to a large group they are no longer ‘confidential.’ ” Reply Br. of Appellant Newspapers at 19 (citing Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 38, 769 P.2d 283 (1989); Ames v. City of Fircrest, 71 Wn. App. 284, 296, 857 P.2d 1083 (1993); Columbian Publ’g Co. v. City of Vancouver, 36 Wn. App. 25, 30, 671 P.2d 280 (1983)). But two of the cases on which the Newspapers rely do not support their position because they dealt with disclosure to the media, not private businesses and affected private workers. Columbian Publishing stated
The Newspapers also cite cases addressing provisions of the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552.
But such a construction renders the confidentiality provision meaningless. See State v. Ritts, 94 Wn. App. 784, 787-88, 973 P.2d 493 (1999). L&I consultants obtain “information” from the volunteer employer and its employees, and via the reports it uses this information to provide site-specific recommendations for health and safety improvements to the employer. RCW 49.17.250. As L&I points out, “Reading the report tells you all the information that [L&I] has gotten from the employer.” RP (Oct. 25, 2002) at 8. BIAW and the Newspapers’ reading of the statute is contrary to its plain language.
Award of Attorney Fees, Costs, and Penalties
In addition, L&I contends that the trial court’s penalty and attorney fee award to BIAW and the Newspapers was improper. BIAW and the Newspapers assert that because they obtained the requested information, they are the prevailing parties and entitled to a fee and penalty award regardless of the outcome on appeal. We disagree.
RCW 42.17.340(4) directs a court to award penalties, attorney fees, and costs to any person who prevails against an agency in an action seeking the disclosure of public records. Amren v. City of Kalama, 131 Wn.2d 25, 34-35, 929
Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record.. . shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he was denied the right to inspect or copy said public record.
RCW 42.17.340(4) (emphasis added).
A plaintiff “prevails” if “ ‘prosecution of the action could reasonably be regarded as necessary to obtain the information,’ ” and “ ‘the existence of the lawsuit had a causative effect on the release of the information.’ ” Violante v. King County Fire Dist. No. 20, 114 Wn. App. 565, 569, 59 P.3d 109 (2002) (quoting Coalition on Gov’t Spying v. King County Dep’t of Pub. Safety, 59 Wn. App. 856, 863, 801 P.2d 1009 (1990) (COGS)
Both Violante and COGS
Reversed.
Houghton and Hunt, JJ., concur.
Review denied at 154 Wn.2d 1030 (2005).
BIAW describes itself as “the state’s largest trade association with over 10,000 business members involved in construction and homebuilding projects, and related business activities.” Br. of Appellant BIAW at 3.
Attached to BIAWs original records request as an example of what it sought was a January 7, 2002 letter from Gary Moore, L&I Director, to Wal-Mart Stores,
Ergonomics is defined as “the science and practice of designing jobs or workplaces to match the capabilities and limitations of the human body.” WAC 296-62-05150.
A not-for-profit association representing 27 daily newspapers and the Washington State Bureau of the Associated Press.
A not-for-profit association representing 110 community newspapers in Washington.
At the hearing, BIAW and the Newspapers moved for a stay until the Supreme Court issued a decision in Yousoufian, but the trial court denied the motion.
This applies only to those exemptions explicitly identified in other statutes and does not allow a court “ ‘to imply exemptions but only allows specific exemptions to stand.’ ” PAWS II, 125 Wn.2d at 262 (quoting Brouillet v. Cowles Publ’g Co., 114 Wn.2d 788, 800, 791 P.2d 526 (1990)).
The legislature juxtaposed these two caveats:
Information obtained by [L&I] as a result of employer-requested consultation and training services shall be deemed confidential and shall not be open to public inspection. Within thirty days of receipt, the employer shall make voluntary services reports available to employees or their collective bargaining representatives for review.
RCW 49.17.250(3) (emphasis added). We are required to construe statutes as a whole, considering all provisions in relation to each other and giving effect to each provision. Wright v. Engum, 124 Wn.2d 343, 878 P.2d 1198 (1994).
See RCW 49.17.180(6).
Moreover, while the bill was pending in the House Commerce and Labor Committee, the Executive Director of Washington’s Public Disclosure Commission wrote to the committee chair in January 1991, urging the committee to “consider carefully, before approving this bill, its apparent conflict with” the PDA. 1 Suppl. CP at 675.
See Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994) (PAWS II); Dawson v. Daly, 120 Wn.2d 782, 788, 845 P.2d 995 (1993).
RCW 49.17.250 describes the program.
In a statement of additional authority (RAP 10.8) filed on August 5, 2004, the Newspapers draw our attention to a passage from Laborers International Union of North America, Local No. 374 v. City of Aberdeen, 31 Wn. App. 445, 449, 642 P.2d 418, review denied, 97 Wn.2d 1024 (1982). That case dealt with whether the deletion of certain details before disclosure was proper under the PDA’s “unreasonable invasion of personal privacy” exception, former ROW 42.17.260(1) (1975); it too does not alter our analysis here.
The Washington PDA closely parallels FOIA, and when construing similar provisions, judicial interpretations of that act are helpful in construing the PDA. Hearst Corp., 90 Wn.2d at 128. See also Dawson, 120 Wn.2d at 791. The Newspapers argue that, because the provisions of FOIA and the PDA do not differ as to the proposition that disclosure to some is the equivalent of disclosure to all, FOIA cases are helpful. But in fact, neither the PDA nor FOIA contains such a provision.
See, e.g., North Dakota ex rel. Olson v. Andrus, 581 F.2d 177, 180 (8th Cir. 1978); Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977); Shell Oil Co. v. Internal Revenue Serv., 772 F. Supp. 202 (D. Del. 1991); Wash. Post Co. v. United States Dep’t of Air Force, 617 F. Supp. 602 (D.D.C. 1985) (each discussing FOIA “exemption 5,” which exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency,” 5 U.S.C. § 552(b)(5), and holding that, by analogy to waiver of attorney-client privilege, an agency cannot claim that the information is exempt from disclosure); N.W. Coalition for Alternatives to Pesticides v. Browner, 941 F. Supp. 197, 201 (D.D.C. 1996) (holding that FOIA “exemption 4” did not apply because agency did not meet burden of showing that desired information consisted of “trade secrets and commercial or financial information obtained from a person [that are] privileged or confidential”); Lawyers Comm. for Human Rights v. Immigration & Natural
Under FOIA, a plaintiff substantially prevails if it demonstrates that “prosecution of the action could reasonably be regarded as necessary to obtain the information,” and that “the existence of the lawsuit had a causative effect on the release of the information.” Miller v. United States Dep’t of State, 779 F.2d 1378, 1389 (8th Cir. 1985).
COGS held that the phrase “in the courts” in RCW 42.17.340(3) modified “action” — and thus it was unnecessary for the party seeking disclosure to prevail “in the courts.” 59 Wn. App. at 861-62.
Reference
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