. . .. .. . . .. .. .. . . .. . .. . . .. .. A 1 SEP 2 7 2011 -- . 5; 6 STATE OF WASHINGTON . 7 SPOKANE COUNTY SUPERIOR COURT - 8 JEFFREY R., NO. 10-2-05025-1 I 9 Plaintiff Juncivirzm 10 12 DEPARTMENT OF CORRECTIONS, et al. 13 Defendants. 14 This matter came before the Court on Plaintif Motion for Show Cause on April 22, 15 2011, with Plaintii, Jeffrey R. McKee, appearing pro se, and Robert M. McKenna, Attorney . 16 General, and James Brooks Clemmons, Jr., Assistant Attorney General, appearing for the 17 Defendants Department of Corrections (DOC), et al.. At that hearing, the Court found a I 18 violation of RCW 42.56, the Public Record Act (PRA), which was stipulated to by Defendants. 19 On July_ 1, 201.1, -this Court held'a'hearing to address penalties- and costs should be 20 imposed because of the stipulated violation. In reaching its decision the Court considered the 21 oral argument of and counsel for Defendants in addition the following pleadings: 22 1. Plaintiffs Motion for Show Cause, with attached exhibits; 23 . 2. Defendants' Response to Plaintiff Motion for Show Cause, with attached exhibits; i 24 3. Plaintiffs Reply to Defendants' Response to Plaint.iff' Motion for Show Cause, 25 with attached exhibits;. 26 4. P1aintiff's Motion for Show Cause and In Camera Review, with attached exhibits; JUDGIMENT 1 GENERAL OF WASHINGTON No. 10-2-05025-1 I - 1 5. Defendants' Response to Plaintiff Motion for Show Cause and In Camera Review, 2 with attached exhibits; 3 6. Plaintiffs Reply to Defendants' Response to Plaintiffs Motion for Show Cause and I 4 In Camera Review, with attached exhibits; 5 7. Plaintiffs Memorandum Addressing Penalties for a Violation of the Public Records 6 Act, with attached exhibits; and 7 8. Plaintiif s_ Motion for Penalties. 8 The Court also incorporates its oral rulings as a basis for this order. Therefore, IT IS 9 ORDERED, ADJUDGED, AND DECREED AS FOLLOWS: Plaintiff Motion for Penalties is 10 GRANTED IN DENIED IN PART. ll JUDGMENT is hereby entered in favor of the Plainti&? Jeffrey R. McKee, and against 12 Defendant DOC as noted below: 13 Service fees . $40.00 . 14 Copying fees $112.50 15 Postage fees I 16 Total $199.34 17 The Court DENIES Plaintiffs request for an award of penalties in the present matter 18 because Plaintiff failed to establish that Defendants acted in bad iaith in responding to Plaintiffs 19 request to review his central Hle. - 20 The amounts awarded to Plaintiif for service fees, copying fees, and postage fees are Z- 21 subject to DOC deductions, outlined in DOC policy 200.000 (effective June 20, 2011), and 22 Deduction Matrix (Attachment 2 of DOC policy 200.000) and Deductions (Attachment 3 of 23 DOC Said amounts awarded to Plaintiff are to be deposited into Plaintiifs 24 Offender Trust Account maintained by Defendant DOC. 25 The Court further orders that Defendant Department of Corrections is to pay to 26- Spokane Superior Court the following amount: . - 1 Superior Court civil iiling fee $235.00 2 This amount is to be paid into the Court Registry, at: 1 3 Spokane County Courthouse - 1116 W. Broadway Avenue, Room 300 4 Spokane, WA 99260 5 DONE IN OPEN COURT this ENO HONORABLE MARYANN C. MORENO 9 10 Presented by: Approved as to Form and - Notice of Presentation Waived: 11 M. MCKENNA 12 Attomey General 13 . 14 JAMES BROOKS CLEMMONS, JR., JEFFREY R. MCKEE 15 WSBA #22896 Pro Se 16 Assistant Attorney General Attomeys for Defendant ATTORNEY GENERAL GTON No. 10-2-05025-1 - SF-00003 Spokane, WA 99201-1194 5 PRR-2011-00450 (5991456-3123 Superior Qiuurt ut the btatz ut Easbiugtun for County of ?pukauc .. j` . QJ if r.rrV . rg.: .rr; a wm; ii is nn al` Jugaigan Asgniiugu TEM (509) 477471 2 - 8 FAX: (509) 477-5714 TDY: (509) 477-5790 - 11i6 W. Broadway, Room 305 - email: dapt70spokanecounty.org Spokane, Washington 99260-0350 September 27, 2011 - - Jeffrey R. McKee #8 82819 Brooks Clemmons Coyote Ridge Correction Center Attorney General of Washington P.O. Box 769/ 1301 N. Euphrata Ave. Corrections Division . Connell, WA 99326 West 1(116 Riverside Ave. Spokane, WA 99201 R. MCKEE VS DEPARTMENT OF CORRECTIONS CASE 10-2-05025-1 Please tind enclosed for your records a conformed copy of the Judgment that has been filed today. Sinc e( . xx - . LKENING - Judici ssistant to Judge Moreno CC: Legal File A A t,at_ . . 4 - SF-00004 PRR-2011-00450 I 1 UEXPEDITE uci Hearing Date: October 7, 2011 - Time: 9:00 a.m. 4 6 . 7 IN SUPERIOR COURT OF THE STATE OF WASHINGTON . 8 IN AND FOR THE COUNTY OF THURSTON 9 AL MOUNCER, N0. 11-2-01052-7 . 10 P1?i?1if? 1] I FINDINGS OF FACT, 12 CONCLUSIONS OF LAW, STATE or wAs1-nNoroN, AND ORDER 13 OF 14 SYSTEMS, PUBLIC RECORDS ACT 15 Defendant. CASE 16 17 The Court, having fully reviewed the record, including: - 18 1. The plaintiff Motion to Show Cause, 19 2. The defendant's Memorandum in Response to Order to Show.Cause 20 andllattached declarations of Ken Goolsby and Allen T. Nguyen and having heard 21 counsel at oral argument on May 27, 2011, herein enters findings of fact, 22 conclusions of law, and an order on the Plaintiffs Motion to Show Cause under 23 the Public Records Act. 24 - 25 - FINDINGS OF FACT, CONCLUSIONS OF 1. . LAW, AND ORDER Bm,0m"? oiympa, ws PRR-2011-00450 1 I. FINDINGS OF FACT 2 The Court finds that the Department has sustained its burden under RCW 3 42.5 6.550(2) of proving, by a preponderance of the evidence, the following facts: 4 1. The plaintiff submitted a public records request to the Department of 5 Retirement Systems (Department) dated February 25, 2010. 6 2. The Department received the plaintiffs public_ records request on 7 March 1, 2010. 8 3. The plaintiffs public records request asked for: 9 Copies of all DRS records within the last Eve years relating to 10 "discovery" and/or the application of` IRC 415(b) pension 11 - benefits limits to plan members and retirees. Also,` please include 12 copies of all records whereby DRS notified all DRS plan members and . . - . 13 retirees of said "discovery". 14 Copies of all DRS records identifying those DRS members 15 and retirees DRS believes to be impacted by IRC 4125 pension I 16 benefits limits, and copies of all DRS correspondence to or Hom those 17 members and retirees. 18 (c)A11 documents related to IRC 415 pension benefits limits 1 19 "team" who is assigned responsibility for working on the IRC 415(b) 20 limits issues. Also requested are records related to its charter, 21 meetings held, agenda; presentation papers and handwritten notes of 22 attendees for all meeting of said teamCONCLUSIONS or 2 if I Copies of all public records requests for the last five years 2 requesting public records or information from DRS on IRC 415(b) 3 pension benefits limits issues. . . 4 Copies of contracts with law Erms and consultants who have 5 advised DRS on IRC 415(b) benefits limits issues over the last five 6 years. Also provide copies of said law firms and consultants invoices 7 for services rendered in conjunction with IRC 4l5(b) benefits limits 8 issues (redacted as necessary). 9 All records within last five years related to changes to 10 i website pertaining to information relating to IRC 4l5(b) benefits limits issues. Please also include copies of those changes made to DRS 12 website related to IRC 415(b). I 13 Copies of newsletter published and distributed to 14 members for last five years wherein DRS notified members of newly 15 "discovered" impacts of IRC 4l5(b) pension beneits limits. 16 (lr) All DRS records within last five years related to DRS intemal 17 discussions to revise or publish WAC regulations to address 18 415(b) pension benefits limits issues. Also include copies of those 19 revised or published WACs and the dates revised or published. 20 (i)Copies of all DRS records related to DRS compliance, or non- 21 compliance, with Internal Revenue Code provisions pertaining to IRC 22 415J(b) pension benefits limits. Also, please include all records 23 pertaining to concerns related to a DRS pension plan deemed by the 24 25 - FINDINGS or FACT, CONCLUSIONS or . 3 ATTORNEY GENERAL OF WASHINGTON I LAW, AND oanaa sw . I - IRS "nonqualified" as a result of non-compliance with IRCW 415(b) 2 pension benefits limits. 3 Copies of agendas, meeting minutes, presentation papers, and 4 attendees' hand written notes where IRC 415(b) pension benefits limits 5 were discussed by DRS employees within the last five years. If 6 privileged, please identify the attendees and dates of such meetings. 7 (lc) Copies of filing with the IRS. 8 (l)Copies of all records related to administrative claims, lawsuits filed 9 against DRS challenging DRS1 interpretation or application of IRC 10 I 415(b) pension benefits limits. 11 All records related to Albert E. Mouncer's 2008 requests to 12 DRS for an estimate of his prospective pension benefits. . 13 All records related to Albert E. Mouncer's 2006-7 requests to 14 DRS for a determination of benefits in conjunction with his then- 15 . pending divorce action. 16 (0) All records related to Albert E. Mouncer's December 2009 - 17 request to DRS for an estimate of his prospective pension benefits. 18 4. On March 5, 2010, the Department sent the plaintiff a letter 19 estimating that it expected to provide a response 30 business days. This 20 estimate was based on the Department's standard timehame, which Public 21 Records Officer Allen Nguyen viewed as appropriate in light of the nature and 22 scope ofthe plaintiffs request. Mr. Nguyen expected that there could be scores 23 of responsive documents stored in multiple formats (including hard copy, CDs, 24 electronically imaged iles on the Department's computer network, and hand. 25 Rg?clir, CONCLUSIONS or 4 - I 1 written notes) and that some of the documents might include personally 1 2 identinable information about other pension plan members and retirees. 3 5. On May 1, 2010 the Department provided records in response to 5 4 of the 15 categories of requested documents. In its ll, 2010 cover letter 5 accompanying the records, the Department stated: I 6 The Department had no records responsive to 4 other categories of 7 requested documents. . 8 Due to the volume of requested information, the constraints of other 9 agency business, and the workloads of those most closely involved with 10 producing records for the plaintiff} it would need additional time to provide . 11 the remaining records. - - 12 The Department would "continue to compile the records it believes 13 to be responsive and disclose an as they become available." The 14 Department did not name a specific calendar date by which it would 15 respond fully to the request. 16 6. After the Department sent its May 11, 2010 letter, the Department's 17 Information Services Division identified 15 computer disks containing over 18 100,000 documents that might be responsive to the plaintiffs request. 19 7. Due to the press of other pending public records requests, Public 20 Records Officer Nguyen was unable to sort through these 100,000 documents 21 before August 2010 when he transferred to another position. 22 8. In August 2010, another Public Records Officer, Ken Goolsby, 23 assumed responsibility for the plaintiffs request. i 24 25 i OF FACT, CONCLUSIONS or ATTORNEY GENERAL 01* WASHINGTON LAW, AND oiunek Sw I I I- 9. On October 26, 2010, the Department provided additional records in 2 response to the plaintiff request. In its October 26, 2010 cover letter . 3 accompanying the records, the Department stated: 4 The Department would need additional time, and 5 Would "continue to compile the records it believes to be responsive 6 and disclose them as they become available." The Department did not -7 name a' specific calendar- date by which it would respond hilly to the 8 request. 9 10. On December 8, 2010, the Department provided additional records. 10 In its December 8, 2010 cover letter accompanying the records, the Department stated: I 12 The Department would need more time, and . 13 The Department would "continue to compile the records it believes 14 to be responsive and disclose them as they become available." The 15 . Department did not name a specific calendar date by which it would 16 h1l1y respond to the request. 17? 11. On January 27, 2011, the Department sent a letter to the plaintiff 18 stating that it would provide documents bi-weekly once it had a clear idea of a 19 timename for providing the next set of documents. In its letter, the Department I 20 asked the plaintiff to clarify whether he wanted to receive the rest of the records 21 electronically, via email, on a CD, or in hard-copy format. The letter also stated 22 in part: you no longer wish to pursue this public records act please contact 23 the Department and we will close the request. (emphasis in original). 24 25 FINDINGS OF FACT, CONCLUSIONS OF I 6 ATTORNEY GENERAL OF WASHINGTON LAW, AND oitoaa sw isia-iggii1(i-omso I 12. The plaintiff never responded to the Department's January 27, 2011 2 request in any fashion, including by indicating what format he wished to receive 3 records in. 4 The Department viewed the plaintiff failure to respond to the 5 Dep`artment's request for clarification as abandonment of his public records 6 request. 7 14. On May 17, 2011, the plaintiff Bled this lawsuit seeking an 8 estimated calendar date by which he can expect to receive the balance of the I 9 records he was seeking. 10 15. The Department interpreted the filing of the lawsuit to mean that the 11 I plaintiff was re-activating his public records request. On May 24, 2011, the 12 Department provided the plaintiff with a letter estimating that it would be able to . 13 provide the remaining records to the plaintiff by July 25, 2011. 14 I 1. CONCLUSIONS or LAW 15 The Court makes the following conclusions of law: 16 1. - The initial 30 business day time estimate provided in the 17 Department's May 11, 2010 letter was reasonable and complied with RCW 18 42.56.520. I 19 2. RCW 42.56.520 does not require the Department to provide revised 20 time estimates when it is unable to provide records within an initial time 21 estimate. 22 3. The Department's January 27, 2011 letter to the plaintiff asking 23 whether the plaintiff wished to receive the remaining records via emailhardacopy format was a request for clarification under RCW 42.56.520. 25 CONCLUSIONS OF 7 ga-lggl;111-00450 I 1 4. . The plaintiffs failure to respond to the Department's January 27, 2 2011 request for clarification constituted an abandonment of the plaintiffs public 3 records request and relieved the Department of any obligation to provide the 4 remaining requested public records. In addition, even if the Department had an 5 obligation to provide revised time estimates after it was tmable to provide records 6 within the initial time estimate, the plaintiffs failure to respond to the I 7 Department's January 27, 2011 request for clarification relieved the Department 8 of any obligation to provide revised time estimates at any time during the 9 pendencyrof the plaintiffs public records request and of any liability pursuant to -- 10 RCW 42.56.550(2) relating to the adequacy of its with the 11 p_laintiH` between the expiration of the original time estimate and its January 27, 12 2011, letter to the plaintiff. - 13 5. Because the plaintiffs failure to respond to the Departmenfs 14 January 27, 2011 request for clarification constituted abandonment of his public 15 record request, and there is no current public records request pending, there is no 16 effective relief this Court can provide and the case is therefore moot. 17 11. 011111111 18 rr IS 111211EBY ORDERED that: _19 1. The plainti&'s prayer for a ruling that the Department violated RCW 20 42.56.520 is denied; 21 2. The plaintiffs prayer for a order requiring the Department to set a 22 deadline to "fu11y wit.h the Public Records Act is denied; 23 3. The plaintiff shall take nothing by his complaint; 24 4. The case is dismissed with prejudice, and 25 FINDINGS or mer, co1~1cLus1oNs or ?s ATTORNEY GENERAL OF WASHINGTON LAW, AND ORDER SW 7 I 5. Each party shall bear its respective costs and attomeys fees incurred in this 2 case. ff 3 DONE IN OPEN COURT this day Oct 4 . -- 5 The Honorable Christine Pomeroy 6 Presented by: 7 8 ROBERT M. MCKENNA Attorney General - ESSKO, WSBA No. 15472 . Attorneys for Defendants . . 13 State of Washington and 14 Dep fRetiremy Systems PAUL NE . Attorney at Law 18 Attorney Plaintiff Mr. Mouncer FINDINGS OF FACT, CONCLUSIONS OF 9 ATTORNEY GENERAL OE YVASHINGWN LAW, AND canes . sw Olympia, WA 98504-0108 (s60)sa6-2636 SF-00013 PRR-201 1-00450 la 1 UEXPEDITE $@302012 QQ I 2 Liunuml I I in-_ I 3 Date: Time: - 4 The Honorable.Carol Murphy 5 A 6 ex mm 7 STATE OF WASHINGTON 8 THURSTON COUNTY SUPERIOR COURT - WASHINGTON PUBLIC No. 11-2-00134-0 9 PORTS ASSOCIATION, - FINAL ORDER .10 Plaintiff] li v. . I STATE OF WASI--IINGTON 12 OF . . 13 RETIREMENT SYSTEMS, 14 - Defendant - - - 15 COMES NOW, the Court, having read the pleadings and exhibits i6 submitted by the parties and having heard the parties in oral argument, and makes 17 the following order formalizing the Court's ruling on September 16, 2011. 1. The remaining claim of the Plaintiff alleging Defendant failed to 8 - render the fullest and most timely assistance possible in response to Plaintiffs 19 Public Records Act (PRA) request under RCW 42.56.100 and the ancillary claim 20 referenced but not pled that Defendant distinguished among requestors in 21 violation of RCW 42.56.080 are dismissed without prejudice under CR 4l(a) - 22 pursuant to Plaintiffs voluntary dismissal. 232. The Court found that Defendant had violated the PRA when, following the 24 expiration of its initial reasonable time estimate, the Defendant failed to provide a I 1 ATTORNEY GENERAL OF WASHINGTON FINAL ORDER 40108 Olympia, WA 98504-0108 - (360) 586-3636 i SF-00014 I PRR-201 1-00450 I revised reasonable estimate of the time required to fully respond to Plaintiffs 2 public records request. That violation lasted &om September 14, 2010, through . 3 February 18, 2011, for a total of 155 days. See April 1, 2011, Preliminary Order 4 of the Court. RCW 42.56.550(4) requires imposition of a penalty for that violation. The amount of the penalty is left- to the discretion of the court. Having 6 fully considered the facts of this case in light of the factors provided in 7 Yousouficm v. Ojice 0fR0n Sims, 168 Wn.2d_444, 467, 229 P.3d 735 (2010) 8 (Yousoujian ILO, the Court sets the penalty per day of violation at $25 per day. The total penalty ($25/day 155 days) is $3,875. 9 3. The Court awards Defendant $230.00 in costs. - H4. The Court Ends that the Plaintiff attor11eys' hourly rate of $225 is reasonable. 11 The Court further iinds that the time spent by Plaintiff' attomey in this case as 12 documented by the time records submitted by Plaintiff attorney are reasonable. 13 Because the Plaintiff prevailed on one claim, did not prevail on others, and 14 voluntarily dismissed 2 of its original 5 claims, the Court awards-Plaintiff 40% of 15 its attorney's fees it incurred. Plaintiffs total attorneys fees documented in the 16 supplemental fee statement tiled on September 15, 2011, documents attomey's 17 fees of $17,697.51 (total fees and costs less $230 separately allowed costs). 18 Accordingly, the fee award allowed under this order is $7,079. .4). 19 5. Total costs, including reasonable attomey's fees, awarded Plaintiff 20 under RCW 42.56.550(4) equals $7,3 09.00. . . 6. The total award assessed against Defendant is $11,184 ($7,079 attomey's fees $230 21 costs $3,875 penalties). 22 23 24 2 ATTORNEY GENERAL OF GTON FINAL 0111:1211 1 DONE IN OPEN COURT this day of September, 2011. 2 Ca/wd . - 3 The Honorable Caro 4 Present II 5 I . Paul Neal, BA #16822 6 Attorney for Petitioner, 7 Washington Public Ports Association 8 Approved as to form: - 9 ROBERT M. MCKENNA I I 10 Attomey General. K- A 12 SP NCER DANIELS, WSBA #6831 13 14 I WYATT, WSBA #30916 I - I 1 16 Assistant Attomey Generals - - for Washington State . 17 Department of Retirement Systems Arrommroauaxaror wasnmmow FINAL ro awaoios Olympia, WA 98504-0108 (seo) sas-asses SF-00016 I - PRR-2011-00450 Elgin? ES I FEB 1 5 2000 THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF THURSTON 8 JEFFREY PROBST, N0. 05-2-01341-6 . 9 . Plaintiff] STIPULATED ORDER OF 10 DISMISSAL v. Il STATE OF Judge Gary R. Tabor 12 OF RETIREMENT SYSTEMS, - 13 Defendant. 14 THIS MATTER came on regularly before the imdersigned Judge of the above-entitled 15 Court. The Plaintiff, Jeffrey Probst (Probst), appeared by and through his attorney, 16 STEPHEN K. the Defendant, State of Washington Department of Retirement 17 Systems (the Department), appeared by and through its attorneys, ROBERT M. MCKENNA, - 18 Attomey General, and SARAH E. Assistant Athomcy General. and the 19 I Department, having entered into an agreement to settle and compromise thi action, now - voluntarily seek to dismiss this matter with prejudice. The Court being fully advised in this 21 matterSTIPULATED oaonn or DISMISSAL 1 7141 Clearwater Drivo SW PO Box 40l(B WA assoc-ams (360) Fm (s60)ss6.as92 SF-00017 PRR-201 1-00450 IT IS HEREBY ORDERED, ADIUDGED AND DECREED that this matter is dismissed with . DONE IN OPEN COURT this 5 day of 2008o:ro< ae 8 Presented By: 9 ROBERT M. MCKENNA . . Attomey General 10 1 1 i. f' WSBA N0. 25273 12 Assistant Attorney General 15 Attorneys for Department of Retirement Systems 14 15 Approved As To Form 16 Notice Of Pnesentment Waived 17 5 . 18 STEPHEN K. FESTOR, WSBA No. 23147 19 Attomey for Plaintiff STIPULATED ORDER OF msM1ssAL 2 m?*U GMMC 1- 9* WDg?m**gNnm?N 7141 C1?nwn\erD1iveSW P0 Olympia, WA 98504-0108 (360) sus-seas Fu: SF-00018 PRR-2011-00450 FEB.1520D8J . - . GCULLD THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR.THE COUNTY OF THURSTON 8 . JEFFREY PROBST, NO. 05-2-01341-6 . Plaintiff] SETTLEMENT AGREBIHENT 10 v. . 11 Judge Gary R. Tabor STATE OF 12 OF RETIREMENT SYSTEMS, 13 Defendant. I4 In resolution of this matter, the Department of Retirement Systems (the Department) by 15 and through its attomeys, ROBERT M. MCKENNA, Attomey General, and SARAH E. 16 I - Assistant Attomey General, and the plaintiff] Jefiiey Probst (Probst), by and through 17 I - his attomey, STEPHEN K. FESTOR, agree as follows: I 8 1. The parties stipulate that Thurston County Superior Court Cause No. 05-2- 19 I 01341-6 may be dismissed with prejudice. The parties will sign and file a stipulated order, 20 through which the Court may dismiss this action with prejudice. 2 2. The Department will pay Mr. Probst and the law firm of Bendich, Stobaugh 22 Strong, P.C., the sum of titty thousand dollars ($50,000) in and complete settlement of this 23 - matter. This settlement sum includ costs, attomey fees, and penalties. The amount shall be 24 distributed as agreed by the parties within forty-tive days after the Court has entered an order 25 dismissing this case with prejudice. 26 1 7141 Clemwam??Drive SW rommoros Olympia, wa 9::04-orcs (saunas-me Fax: (360) 586-3593 SF-00019 PRR-201 1-00450 I . 3. I Other- than the in paragraph 2 ofthis Settlement Agreement, II. . . 2 Probst hereby releases and discharg the Washington. Department of 3 Systems, including its otlicers, agents, attorneys, and employees, Bum any and all demands, 4 obligations, actions, causes of rights, damages, costs (including payment of attomeys' - 5 feesl, expens and compensation, that he or- could have asserted related to the public 6 records request referenced in the 2005 July Complaint. This release does not apply to any 7 claim brought by Probst against the in the pending class action claim in Probst v. 8 Department of Retirement Systems, Thurston Co. No. 05-2-00131-1. - 9 4. The Department and Probst agree that this settlement is a compromise of 10 matters involving disputed issues of law and fact. Nothing contained herein, including the 11 payment to Probst, is to be construed or interpreted as an admission of liability on the part of 12 the Department of Retirmnemt Systems, by whom liability- is expressly denied. Nothing 13 contained herein is an admission by either party as to the- merits of any claim or defense ir1 14 dispute (or which could have been in dispute) between the parties. 15 5. The parties enter into this Settlement Agreement volrmtarily as a compromise of 16 disputed claims, and as a means of fmally resolving all questions, issues, duties, obligations, 17 and responsibilities between them regarding those disputed claims. 18 6. This Agreement is an irrevocable disposition of all claims under the public . L9 records act that were raised or could have been raised in Probst's July 2005 Complaint. 20 7. This Settlement Agreement constitutes the fmal written expression of this 21 settlement and is a complete and exclusive statement of the terms ofthe Agreement. 22 8. Neither partylis to be considered a prevailing party in this action for any 23 purpose, including, but not limited to, feesSETTLEMENT AGREEMENT 2 7141 cP1;1::o:; {gv. sw onmigzb or mr eso; SF-00020 PRR-201 1-00450 i 1 Neither partywill ii?cm the Cou1?t's Order of Dismis?al in this . . _3 daYFebruary,2008FESTOR, SBA No. 23147 Date 5 ttemey for Jeffrey Probst . 7 . - 8 . 9 OBERT M. MCKENNA - ttomey General 10. ll 17 *2 A SBA No. 25273 Da l2 - ttomeys for Department of Retirement ystems SETTLEMENT AGREEMENT 3 ATWRNEY 1141 P0 Bm: 40108 Olympia, WA 98504-0108 [360586-3636 Fu: (360) 586-3593 SF-00021 PRR-201 1-00450 '5upEm0R 1 1 E1 EXPBDITE HURSTOH COUNTY- - . No Hearing Set 1 2 Hggyipgigsgt -. - - IUNDV 5 PHI 2-.. 3 5- 2010 .1. - Timo: 9:00 4 The Christine Pomeroy - . - . DE ., I 1 IN THE SUPERIOR COURT OF THE STATE OF ON 7 - IN AND COUNTY OF THURSTON 1 HERB DEMPSEY, ED BRICKER, and No. 10-2-00882-6 - . 9 DOUG mkmoORDER OF VOLUNTARY . . 10 - Haintiffs, DISMISSAL AND RETAINING . JURISDICTION TO DECIDE 11 V. - MOTION FORFEES . - AND COSTS 12 State of OFFICE OF FINANCIAL AGEMENT and {Expand] . - 1 . 13 DEPARTMENT OF INFORMATION 1 SERVICESDefendants. . 1 15 _15 17 November, 2010, on P1aiu11fEs' Motion for a Dismissal putsuaxrt to 1 18 - 19 Defenda?1s_w?re by ihe Attorney General, ROBERT M. MCKENNA, and Senior . I 20 Counsel STEVE DIETRICH. The Court considered the WIIHZGD. materials submitted IURISDICTION . 1 . . . . . SF-00022 PRR-201 1-00450 .- .. . - - 2.. The Court shall main jurisdiction to dooidTSta1?? moticm fom . compensation undo: CR11 audlor RCW4-.84.185 and to determine anjy other costs taxable I 3' -- I -. pursuantto I 3 any in . [Writer; unl b8?Q upon thi$ case it is CQu['fih- locosts 8 ofau Smqay of`N0ve;nbcx, 2010HON ORABLE POMEROY PmsemodbySTBVEB. IETRICH 17 Scpim: Counsel` . . WSBANO. 21897 . I . I I 18 . _19 A;I1pr0vodIf0r?nt1?WSBA. N0. 13417 . i1?J%Yo . I . JURISDICTION - ?1ym?h.wA sms-o1?s g. 1 SF-00023 PRR-201 1-00450 ., . I il I I I II APR 112011 IU 1 - Honorable Paula Casey - - 2 EXPEDITE - No hearing set . . 3 Hearing is set . . 4 Date: Time: 5 JudgeICaIendar2011 . SUPERIOR COURT 7 . 8 I 9 SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY 10 TRITON MANAGERS TRITON MANAGERS II TRITON N0. 10-2-00574-6 1 1 MANAGERS LIMITED, - - FINAL JUDGMENT AND 12 Plaintiffs, INJUNCTION 13 v. 14 WASHINGTON STATE INVESTNIENT BOARD, 1 5 . Defendant1`8 This matter came before the Court on Triton Managers II 19 Limited, and Triton Managers Limited's of a final judgment on the 20 Court's March 18, 2011 Order, which in favor of Triton on 21 T1?iton's request under the 42.56.540, to permanently enjoin the 22 Washington State Investment Brom disclosing a certain "Proposed 23 Disc1osure." The Proposed Disclostfte contains three pages of material related to Triton Fund . I 24 I and Triton Fund IA that were excerpted from the Private Markets Committee Investment I 25 Summary, prepared -by Brian Roberts, August 22, 2008, and the Investment Memorandum I 26 prepared by Capital Dynamics, August 15, 2008. WSIB prepared the Proposed Disclosure FINAL JUDGMENT In Page 1 an YARMUTH WILSDON CALFO (R) I erewmr smear, sun: 1400 I sauna wntsumeron 90101 20l.516.l80D 206.518.38BB SF-00024 I PRR-201 1-00450 1 response to a February 9, 2010 Public Records Act request from Mr. Gunter H. Zimmer; The 2 Court considered the Proposed Disclosure in camera before rendering its decision. 3 Based on any argument of counsel, the pleadings, and the March 18 Order, 4 judgment is entered as follows: 5 1. Defendant WSIB shall be permanently enjoined from disclosing the 6 Proposed Disclosure. 7 2. The Court shall maintain continuing jurisdiction over this action for the 8 purpose of enforcing this Judgment and Permanent Injunction. 9 I - 10 DATED: 2011. PMM CASEY JUDGE COURT COMMISSIONER 1 1 12 Presented by:' 13 WILSDON CALFO PLLC *2 15 my Roller, WSBA #32021 Andrea D. Ostrovsky, WSBA #3 7749 16 818 Stewart St., Suite 1400 17 Seattle, WA 98144 (206) 516-3800 18 Attorneys for Plaintiffs Triton 19 Approved as to form: 20 . . ROBERT M. MCKENNA 21 Attomey General 22 A By: . - 23 Steve E. Dietrich, WSBA #21897 Senior Counsel 24 Chad C. Srandifer, WSBA #29724 25 Assistant Attorney General 26 Attorneys for Washington State Investment Board FINAL JUDGMENT and PERMANENT In 818 STEWART STREET, SUITE 1400 SEATTLE WASHINGTON 08101 206.510.88ll 809.01 Ic314405 #1/11 PRR-2011-00450 1 2 . . 3 STATE OF WASHINGTON 4 THURSTON COUNTY SUPERIOR COURT I 5 GEORGE NERVIK, No. 11-2-00599-0 6 Plai11tiHSTATE OF WASHINGTON OFFICE RELEASE, AND DISMISSAL OF 8 OF THE ATTORNEY GENERAL, CLAIMS . 9 Defendant. 10 11 This is an AGREEMENT FOR RELEASE, AND DISMISSAL OF 12 ("Agreement") in the above referenced action. Based upon mutual consideration 13 and in their best interests, the parties to this action, Plaintiff GEORGE NERVIK, appearing 14 by and through CHRISTOPHER BAWN, and the Defendant, STATE OF WASHINGTON 15 OFFICE OF THE ATTORNEY GENERAL, appearing by and through its attorneys, 16 ROBERT M. MCKENNA, Attorney General, and CHRISTINA BEUSCH, Deputy Attomey 17 General, agree to the following: 18 1. In consideration of the following provisions of the Agreement, Plaintitf his 19 heirs, assigns or other successors in interest, do hereby release and forever discharge the 20 State of Washington Office of the Attomey General, its agents, employees and 21 representatives &om any andiall existing and tirture claims, damages and causes of action of 22 any nature whatsoever arising out of these incidents wl1ich are described in Plaintifs I 23 Complaint and Amended Complaint in this action and which are the source of his claims . 24 . against the Defendant. In addition, the Plaintiff agrees that the public records request or 25 requests to the Washington State Office of Attomey General that fonn the basis of this I . FOR 1 ATTORNEY GKNBISAL 01* I RELEASE, AND D1sM1ssA1. or . I CLAIMS ozympa, wa 9sso4-cmu . I . I I I I SF-00026 1 PRR-201 1-00450 1 action are considered and deemed satisiied and the responses thereto are considered and I 2 deemed complete. 11 2. Agreement is the final, conclusive, and complete release of liability for 1 4 all known, as well as all unknown and unanticipated claims for recovery of any sort arising 5 out of the incidents stated in the Complaint and Amended Complaint Bled in this action. . 6 3. 'I`l1is Agreement shall be eH'ective when signed by all parties and/or their legal 1 1 7 representatives, so long as the Plaintiff executes this Agreement on or before June 29, 2011. 8 4. The State shall pay to Plaintiff GEORGE NERVHC the sum of THIRTY-SIX 9 THOUSAND AND FIVE HUNDRED DOLLARS AND No in tl1ll 10 settlement of all claims asserted in the case listed above. This settlement sum includes costs, 11 attorneys' fees, per diem penalties, and any other amounts sought in the action and will be 12 paid as follows. The amount of $24,400.00 will be payable by check or warrant to the 13 Plaintifti GEORGE NERVIK. The amount of $12,100.00 will be payable by check or 14 warrant to Plaintiffs Cotmsel, CHRISTOPHER BAWN. 15 5. The parties agree that this Agreement is not an admission of any claim or . I 16 defense or admission that any claim or defense advanced by any party lacks merit. 17 Furthermore, the parties agree that this Agre ent is not an admission of liability by the 18 Defendant, or admission that the Plaintiff has been iijured or damaged or is entitled to any 19 relief as a result of any action or inaction on the part the Defendant. The parties agree that 20 this Agreement is made to allow the parties to compromise their respective litiption 1 21 positions, to eliminate the added costs of further trial preparation, and to avoid the risks and I 22 expenses of trial. 1 23 6. This Agreement constitutes the Hnal written expression of all the terms of this Agreement and is a complete and exclusive statement of these terms. i - AGREEMENT, FOR 2 1 GBNEFAL 01* WASHINGWN 1 aanaass, ANDDISMISSAL or CLAIMS oiyspaawx i I I SF-00027 I 1 - PRR-201 1-00450 - 1 7. The parties agree that neither party is to be considered a prevailing party in 2 this action for any purpose, including, but not limited to, attorneys' fm. 3 8. I The parties jointly agree that dismissal with prejudice of this lawsuit is an 4 appropriate resolution in consideration fornpayment to Plaintiff of the sum 5 THOUSAND AND FIVE HUNDRED DOLLARS AND NO CENTS and the 6 other consideration contained in this agreement. 7 9. The parties agree to execute on or before Iune 29, 2011, and ile with the 8 Court a stipulated order of dismissal with prejudice and/or such other documents as may be_ 9 necessary to eifectuate the dismissal of this case with prejudice. - 1 10 10. The _PIaintiff agrees not to sue the State of Washington or its agencies, 11 employees, and officials over the claims concluded by this Ag1?eement. 12 11. The Defendant agrees to process this Agreement for payment, and in 13 any event will not Hle the Stipulated Order of Dismissal until the payments under this 14 Agreement are issued. 15 12. The Superior Co1u?t shall retain jurisdiction to enforce the terms of this I 16 settlement agreement. 17 13. The Plaintiff declares that the terms of this Agreement are completely read, wholly rmderstood, and voluntarily accepted for the purpose of making a full and iinal 19 compromise, adjustment and settlement of any and all brought by and which might 20 have been brought by Plaintiff in this action against the Defendant. I - 21 14. The parties verify that they have read and understand this- Agreement, that 22 they enter into this Agreement knowingly and voluntarily, and that this Agreement represents 23 the agreement ofthe parties in this caseAWORNEY GENEBAL OF WMHINGYON mama, AND or CLAIMS oryarpta, wa 98504-0100 csomaszoo . I . SF-00028 PRR-201 1-00450 2 3 I -- 7 40// 4 GEORGE NERVIK DATE Plaintiff] 5 49,0; 7 CHRISTOPHER BAWN, WSBA #13417 DATE 8 Counsel to Plaintiff 9 10 11 9- JO CHRISTINA BEUSC WSBA #1822 12 Deputy Attomey General, I by and on behalf of Defendant Washington State 13 Office of the Attorney General AGREEMENT FOR SETTLEMENT, 4 RELEASE, AND DISMISSAL OF U25 SE I CLAIMS WA 98504?0l00 (360) vsuszon SF-00029 I PRR-201 1-00450 I JUN 3 0 Zlill - court? I 2 ezerw 1. ttsouw 3 STATE OF WASHINGTON 4 THURSTON COUNTY SUPERIOR COURT 5 GEORGE NERVIK, No. 11-2-00599-0 6 1 Plaintiff] 5 V. 7 STIPULATION AND STATE OF WASHINGTON OFFICE ORDER OF DISMISSAL 8 OF THE ATTORNEY GENERAL, WITH PREJUDICE 9 Defendant. 10 STIPULATION OF PARTIES I2 Plaimiif GEORGE NERVIK, appearing by and through CHRISTOPHER BAWN, and I3 the Defendant, STATE OF WASHINGTON OFFICE OF THE ATTORNEY GENERAL, 14 appearing by and through its attorneys, ROBERT M. MCKENNA, Attomey General, and 15 CHRISTINA BEUSCI-I, Deputy Attomey General, having settled this matter as set forth in an 16 Agreement of Settlement, Release, and Dismissal of Claims, stipulate and agree to the entry of 17 this order of dismissal with prejudice. 18 . 19 A 2 20// 20 Gaomn Naavuc DATE 21 Plaintih'gln 1 ur? OP #13417 . DATE 24 Counsel to Plaintiff . 25 STIPULAHON AND ATTORNEY GENERALOFWASHINGTON omaha 01=1>1sM1ssAL WITH PREJUDICE Olympia, WA (360) 753-6200 I - i I PRR-2011-00450 2 I - . 1 CHRISTINA BEUSCH, WSBA #18226 DATE 4 Degig Attorney General, I - by on behalf of Defendant Washington State . 5 Oftice of the Attorney General 6 - I 7 ORDER I Pursuant to the stipulation of the parties that they have entered into an Agreement of 9 Settlement, Release, and Dismissal of Claims (Agreement), it is hereby ordered that this action 10 is dismissed with prejudice and without costs or fees to any party. This Court shall retain 11 jurisdiction to enforce the terms ofthe Agreement in this action - it 12 1>ArEDt111s3Q?1ay er 2011. . 13 . 5 SUPE URT JUDGE - - 15 I . I PresentedhyBEUSCH, WSBA #18226 DAT 1 - fj 19 Deputy Attornery General, I Course] forDe endaut Notice of Presentation ved: 23 . 24 (Z CHRISTOPHER BAWN, WSBA #13417 DATE . I 25 comet rar 1 AND 2 i or DISMISSAL it uma wa-mum 2 (360) rss-wo ti 2 1; i 1 SF-00031 PRR-2011-00450 1 I APR 1 5 2011 I EI No Hearing Set . 2 EI Hearing is Set: sonar nm Sai 8,2011 3 0 am .. . 4 The Honorable Christine A. Pomeroy 5 6 STATE OF WASHINGTON - . i 7 THURSTON COUNTY SUPERIOR COURT 8 GEORGE NERVIK, I . ll-2-00599-O 9 Plaintiff} . I0 . trkerosmj 11 STATE OF STATE OF WASHINGTON, . 12 OFFICE OF ATTORNEY ORDER OF PARTIAL GENERAL and ROB DISMISSAL WITHOUT 13 Attorneg General; PREJUDICE and STATE OF WA HINGTON, 14 DEPARTMENT OF INFORMATION SERVICES and 15 MIKE DIS Acting Director, 16 17 Defendants. - 1 I 8 THIS MATTER came before the Court on April 8, 2011, on the State 19 Defe11dants' Motion to Dismiss for Improper J'oi11de1? of Defendants and 20 . Supporting Memorandum. Plaintiff George Nervik was represented by 21 1 CHRISTOPER W. BAWN, Attorney at Law, and Defendants were represented by ROBERT M. MCKENNA, Attorney General, and CHRISTINA BEUSCH, 23 Deputy Attorney General, and SUZANNE SHAW, Senior Counsel. I 24 25 A onmsyosmzm. eros I I wa - (360) 58643636 . I 1 SF-00032 PRR-2011-00450 1 1 GS 1 2 The Court, having reviewed the pleadings, heard argument of counsel, and 3 being fully advised in the matter, hereby FINDS as follows: 4 -1.. Rob McKenna, Attorney General, is not a agency" under 1 I 5 42.56.550, and therefore is not a properly named defendant in this action; 6 2. Mike Ricchio, DIS Acting Director of Washington, is not a 7 "responsible agency" under RCW 42.56.550, and therefore is not a properly named i 8 defendant in this action; . 9 3. The State of Washington is not a "responsib1e agency" under 1 10 RCW 42.56.550, and therefore is not anproperly named defendant in this action;_ 12 4. The claims against the Office of the Attorney General and 13 Department of Information Services are improperly joined in this action, and this 14 action may proceed on the claims against only one of these agency defendants. 15 . - 11. oimnn 1 16 NOW, THEREFORE, the Court, hereby ORDERS as follows: I 17 A. Rob McKenna, Mike Ricchio, and the State of Washingt 1 - 18 dismissed as defendants froegthis action; I- - 19 B. an amended complain'9 5 20 reasserting claims against only one of the agency defendants, either 21 the Ofiice ofthe Attorney General or the Department of Information Services; I i 22 C. Plaintiff has leave to tile a separate action against the agency 23 defendant not named in the amended complaint; 24 1 25 omnsa or PARTIAL 2 WASHINGTON DISMISSAL wrrHOUr paanmice . - . i 1 i . I I D. If Plaintiff failsto Ele an amended complaint as ordered, this action 2 is subject to dismissal in its entirety; and 3 E. Each party is to bear its own costs and fees. . . 4 DONE IN OPEN COURT this 2011. . 6 - 7 - Presented by: 8 ROBERT M. MCKENNA 9 Attorney General Deputy Attorney General - QPR Senior Counsel 16 Attorneys for State Defendants - 17 I Approved as to Eorm; Notice of 18 Presentation Warve 19 20 21 BA N0. 13471 22 Attorney for Plaintiff 1 23 24 - i (mcovosnn] Rosa or PARTIAL 3 . AMMY GENERAL a I nismssar. vgirnour maxunrca . i Olympia, WA 98504-0108 I (360) 585-3636 I SF-00034 PRR-2011-00450 El EXPEDITE ElNo Hearing Set I 2 Hearing is Set: . Date: 08/20/10 . 3 Time: 9:00 a.m. AUG 2 0 zum The Honorable Paula Casey WASHINGTON 8 THURSTON COUNTY SUPERIOR COURT 9 GEORGE E. NERVIK, a single man, NO. 09-2-023 85-6 10 Plaintiff, ORDER GRANTING DEPARTMENTS MOTION FOR ll v. PARTIAL SUMMARY JUDGMENT - 12 STATE OF WASHINGTON DEPARTMENT OF LICENSING, 13 - Defendant. 14 THIS MATTER coming on for hearing on the motion of defendant, State of Washington, 15 - . for partial judgment, said defendant appearing by Robert M. McKenna, Attomey 16 General, and Anthony P. Pasinetti, Assistant Attomey General, and plainti&, George E. Nervik, 17 appearing by his attomey, Michael G. Brannan, and the court having heard argument, considered 18 . the records and E1 herein, including: 19 . . 1. State's pleadings in this matter;. 20 2. Declaration of Walt Fahrer and attached exhibits; 21 3. Declaration of Eric Mark and attached exhibits; 22 . 4. Plaintiff responsive pleadings and supporting documentsand being fully advised; now, therefore, 26 ORDER GRANTING 1 ATTORNEY GENERAL QE WASEENETON Morrow Fon PARTIAL SUMMARY TUDGEMENT same, wx 98104 (206) 464-7676 SF-00035 PRR-2011-00450 . - - I 1 IT IS HEREBY ORDERED that the Plaintiffs claims in this matter to the extent they - 2 relate to records requested at the end of 2005 or beginning of 2006 are time barred pursuant to 3 RCW 42.56.550(6) in that the Plaintiff failed to bring his cause of action within one year ofthe 4 last produced installment of those records; consequently, the State's motion for partial stmimary . 5 . judgment is. granted. 6 DATED this day of 2010. 7 . 8 9 JUDGE PAULA CASE 10 . Presented by: . 1 ROBERT M. MCKENNA 12 Attomey General 14 SINETTI Assistant A ey General 15 WSBA No. 34305 16 I Copy eived and Notice 17 of tion Waivedrannan A mey for Petitioner . 20 WSBA No. 28838 21 22 23 24 25 26 ORDER GRANTING DEPARTMENTS 2 ATTORNEY OENEBAI- OF WASHINGTON Morton Fon PARTIAL SUMMARY JUDGEMENT same, WA 92104 I (206) 464-7676 SF-00036 PRR-2011-00450 El EXPEDITE I . . No Hearing Set 2 Hearing is Set: . rh . Date: I 1/19/10 rg`- wu 3 Time: 9:00 a.m. The Honorable Paula Casey -STATE OF WASHINGTON . 8 THURSTON COUNTY SUBERIOR COURT 9 GEORGE a single man, NO. 09-2-023 85-6 .10 Plaintiif, ORDER GRANTING . MOTION FOR 11 - v. . SUMMARY JUDGMENT I2 STATE OF WASHINGTON I DEPARTIVIENT OF LICENSING, . 13 - - Deibudant. I4 THIS State ofWashington, . 16 . - 17 Braunan, audtlieconirthavingheard . 18 . 19 . l. Stawspleadingsinthismatter; 20 . . 2. Declaration of Ben Shomshor and attached exhibits; 21 3. Declaration of Bruce Clark and attached exhibits; 4. P1ainti;H's responsive pleadings and supporting documents; 23 . df and being advised; now, therefore, . 26 ORDER GRANTING 1 GENEEQL QF MOTION FOR . SUMNIARY JUDGMENT (ZUG)464-vsvs SE-00037 PRR-201 1-00450 1 n` - . 2 . the Public Records Act prior to the Plainiif iiling his lawsuit on October 6, 2009 as the Defendant . 3 . was entitled to produce the records the Plaintiff had requested in his November 19, 2008 and 4 November 20, 2008 public record requests in installments and was in the process of doing just 5 . 6 . to produce the records he had the State's motion for summary judgment granted and 7 the Plaintiffs lawsuit is dismissed. - I this of 201lfi . 9 I 10 I 11 JUDGE PAULA 12 . Presented by: . 13 - - ROBERT M. MCKENNA I4 Ai1?0m?y General Mr- Mvmkaq A *5 . 16 ANTHO INETTI 17 WSBA N0. 34305 - yl; `qgu_ A - 18 Quai h? cate. Copy Received and Notice - `vedBRANNAN - - A Petitionm 22 WSBA No. 28838 24 25 ORDER GRANTING 2? QF MOTION Fox SUMMARY JUDGMENT (20046+1676 SF-00038 PRR-2011-00450 Superior Court of the at pf _Washin ton For Thursto Paula Caaey,?Judge ga 4 Chris Wickham, Jgdge Depo . 1 "-Zig: Department N0. mm Menfhez, Judge - MAR 1 0 2011 Anne mma, Judge partrne No. 2 . mem No. 6 Judge 3 cueilmilurpuy, Judge . 15?1?el?;idl;Esw; '8 I March 9, 201-1 - I I . (112011 A George Nervik - I 800 Sleater-Kinney Rd SE #148 UGENQNG Olympia WA 98503-1127 - . . Jody Lee Campbell . Assistant Attomey General PO Box 40110 . Olympia WA 98504-0110 . . Re: Nervik v. State Licensing - Thurston County Cause No. 09-2-023 85-6 . Dear Mr. Nervik Ms. Campbell: The Motion for Reconsideration filed by Petitioner on February 7, 2011, is denied without oral argument. urs very truly, . I I I aula Casey- Judgc 7 A Marti Maxwell, Adminisvrator (360) 786-5560 TDD (360) 754-2933 or (800) 737-7894. I: is- the policy of the Superior Court to ensure tha1'persor?? ??g5abilities? have equal and full access to the judicial system. PRR-2011-00450 SETTLEMENT AGREEMENT BETWEEN WASHINGTON STATE BOARD OF ACCOUNTANCY, 2 RICHARD C. SWEENEY, CPA, JANE DOE SWEENEY, THOMAS SADLER, CPA, JANE DOE SADLER, EDWIN G. JOLICOEUR, CPA AND . D. EDSON CLARK, CPA, RACHELLE A. BENBOW, CPA, ANDREW D. RAYMOND, CPA, AND DAVID B. BAUMGART, CPA . (AND REIATED CPA THIS ("Agre?nent") is entered into as ofthe date ofthe last signature hereto by and between the Washington State Board of Accountancy (including its oflicers, agents, and ployees), Richar?d C. Sweeney, CPA, Jane Doe Sweeney, Thomas Sadler-, CPA, Jane Doe Sadler, and Edwin G. Iolicoeur, CPA (hereinafter- collectively referred to as "B0ard") and Edson Clark, CPA, Rachelle A. Benbow, CPA, Andrew D. Raymond, CPA, David B. CPA, Clark, Raymond Company, CPA (partnership 8: PLLC), D. Edson - Clark, CPA, P.S., D. Edson Clark Assoc. P.S., Rachelle A. Benbow, CPA, P.S., Andrew D. Raymond, CPA, P.S., and D. Edson Clark, CPA, PLLC (hereinaher collectively referred to as "C1ark"). . AGREEMENT In consideration ofthe mutual promises set forth below, the Board and Clark hereby agree as follows: 1. Public Records Requests. Clark agrees that all requests for public records submitted to the Board prior to the date ofthis Agreement are satistied by the documents provided to him as of October 9, 2009, and that the Board may cease processing these requests, including the requests submitted byC1ark or his attorneys on the following dates: Deoembc 1, 2007 December 15, 2007 December 21, 2007 December 15, 2007 . April 17, 2008 May 27, 2008 October 8, 2008 . February 5, 2009 April 10, 2009 G) June 16, 2009 June 16, 2009 (1) June 17, 2009 June 23, 2009 August 10, 2009 (0) September 23, 2009 Page 1 of 6 _sF-00040_ .. .. -. .- . . 2. Lawsuits. Within 30 days ofthe date of this Agreement, Clark will dismiss and waive appeal of the tbllowing 'I`he Board agrees to cooperate and immediately sign all necessary documentation to firliill this paragraph: D. Edson Clark v. Washington Board ofAccountancy, Thurston County Superior Court No. 08-2-00890--5. D. Edson Clark AndrewDRaymonal Clark Raymond Co. PLLG D. Edson Clark &Assoc. P.S., D. Edson Clark CPA RS. v. Richard C. Sweeney and Washington Board of Accountancy, Court of Appeals No. 38847-2-II. D. Edson Clark, D. Edson Gark CPA P.S., Andrew D. Raymond Andrew D. Raymond CPA P.S. Rachelle A. Benbow, and Rachelle A. Benbow CPA P.S. v. Washington Board of Accountancy Thurston County Superior Cotnt No. 08-2-02649-l . 'I`his mattu is already voluntarily dismissed, and Clark agrees not to ro-file it. -- - D. Edson Clark v. Richard Sweeney and Washington Board of Accountancy, King County Superior Court No. 08-2-40644-0; Remand hearing before the Board regarding ACB-964, Final Order of Board entered September 21, 2009. D. Edson Clark v. Washington State Board ofAccountaney, Richard Sweeney, Jane Doe Sweeney, Dramas Sadler, Jane Doe Sadler-, and Edwin Jollcoetu; Court of Appeals No. 638190-I. . D. Edson Clark v. Washington Board ofAccountaney, Thurston Cormty Superior Court No. 09-2-01330-3. D. Edson Clark v. Washington Board ofAccountanqy, Thurston County Superior CourtNo. 09-2-01813-S. 3. Board Investigations. Within 30 days ofthe date ofthis Agreemmt, the Board will close, without any Ending of fact or of violation, with no firrther action, and with prejudice, the following which comprise all outstanding investigations involving Clark: - Board Case No. 2008-046, Clark Raymond Company (a partnership), D. Edson Clark, CPA, D. Edson Clark, CPA, P.S., Andrew D. Raymond, CPA, Andrew D. Raymond, P.S. (ika Andrew Raymond, CPA, P.S.). Board Case Nc. 2008-066, Andrw D. Raymond, CPA, Andrew D. Raymond, P.S. (ika Andrew D. Raymond, CPA, P.S.), Clark Raymond Company (a partnership), Clark Raymond Company, PLLC. Board Case No. 2008-092, Edson Clark, CPA, D. Edson Clark, CPA, P.S., Clark Raymond Company (a partnership), Clark Raymond Company, PLLC. Page 2 of 6 an . SF-00041 Board Case No. 2008-093, Rachelle A. Benbow, CPA (tka Rachelle A. Gill, CPA), Rachelle A. Benbow, CPA, P.S. (flra Rachelle A. Gill, CPA, P.S.), Clark Raymond 8: Company, PLLC. . 4. CPA Firm Licenses. Within 30 days of the date of this Agreement, the Board will issue without condition the licenses that are the subject of the Board brief adjudicative proceedings (BAPs) listed below. D. Edson Clark, Rachelle A. Benbow, and Andrew D. Raymond will withdraw their respective requests for the brief adjudicative proceedings. 'I`l1e Board agrees to cooperate and immediately sign all necessary documentation to titliill this r>?r?ar?r>h Board BAP No. 2008-05, D. Edson Clark CPA, P.S. Board BAP No. 2008-06, Rachelle A. Benbow, CPA, P.S. Board BAP No. 2009-01, Andrew D. Raymond CPA, P.S. 5. CPA License (Baumgart). Within 30 days of the date of this Agreement, the Board will issue without condition the license that is the subject of Board Case No. 2008-088, David B. Barnngart, CPA and close the investigation without any Ending of tact or ofviolation, with no tirrther action, and 'with prejudice, which all outstanding involving Baumgart. . 6. Correct Board Records re Clark. Within 30 days ofthe date of this Agreement, the Board will amend the designations of previously closed Board files Nos. 96-006 and 96-007 relating to Clark to reflect that the files were closed with "no Ending of vio1ation," instead ofthe manner in which they are currently labeled "no evidence of a continuing violation"). The Board will send written cbnirmation ofthese changes to Clark within said 30 day period. 7. Professional CPA licensing complaints. Nothing in this Agreement prevents the_ Bondhomacdngonprofessional Eachofthe Board members has been provided with Clark's complaint letter dated September- 28, 2009, and nothing in this Agreement requires him to withdraw it. 8. Stipnlatlon and Agreed Order. Within 30 days-of the date of this Agreement, the Board will vacate Stipulation and Agreed Order No. ACB-964 esrecuted by the Board on Novembu 28, 2007 with prejudice and send to Clark written confirmation of such vacation. 9. Payment. Within 30 days of completion of Clark's obligations under paragraphs 2 and ofthe abovesuits and thewithdrawal ofthe BAPs,theBoardwill paytothe A11iedLawGroup, consideration of Clark's promi as set forth in this Agreement. This paymult includes refund of the $3,500 investigative costs previously `paid by Clark under the Stipulated and Agreed Order . thatistobevacatedunderpuagraph 8 ofthisAgreernent. - 10. Agreed Statement. The parties agree to the following statement with respect to all outstanding disputes between them: Page On October- 9, 2009, D. Edson Clar?k and the Washington State Board of Accountancy agreed to a global settlement through mediation of all matters in disgutebetweenthem. Underthetermsofthe settlement, Mr. Clark agreedto a glo audits hearingmon licensing applications, and to withdraw all public records requests he hassu 'ttedtotheBoard. individual licenses sought by Clark and hi colleagues, to close an investigation into past licensing issues, vacate an unpublished 2007 Stipulation and Agreed Order, and pay $500,000 in consideration of the dismissal of the lawsuits and other matters and the release of all claims, known and unknown. 11. Release andClarkthatthisAgreement will definitively settle and resolve all or could have asserted against each other (including the Board and its oEcers, agents, and employees), and the Board and Clark will not have any further liability to each other mr Agreement. Therefore, the Board and Clark (and other successors in interest) hereby completely - release, forever discharge, and save harmless each other (including the Board and it ofticers, agents, and employees) from any and all existing and iirture claims, damages, causes of action, demands, suits, liability, obligations, liens, costs (including payment of attorney fees), and errpens -: of any nature whatsoever- arising out of occurrences or events described in the lawsuits a9i?sttheBoardand 12. Defsultikemedles. On the condition that they have complied with the dispute resolution clause in this Agreement, the parties each shall be artitled to seek injunctive relief for specific performance in the event that the other party materially breaches its obligations under this Agreement. The parties acknowledge that a material breach `of this Agreement could result in irreparable harm to the other party such thatmonetary relief will be insufficient compensation- and that injunctive relief is necessary and appropriate to glve meaning to this Agreement and protecttheparti injunctive rdief in a judicial forum for speeilic of this Agreement is the exclusive remedy and that, after compliance with the dispute resolution clause in this Agreemmt, no other rernedi in law or equity are available to the parties under this Agreement. . . 13. Miscellaneous . Entire Agreement. This Agreement contains the entire agreement and understanding of the parti -. with respect to the entire subject matter? hereof; and there are no inducements, promises or agreements, oral or otherwise, not bodied herein. Any and all prior discussions, negotiations, commitments and understandings relating thereto are merged herein. There is no condition preccderrt to the of this Agreement other than as stated herein, and there areno related collateral agreements existing between the parti that are not referenced herein. - Page 4 of 6 . Amendment andlor Modification. Neither this Agreement nor any term or provision hereof may be changed, waived, discharged, amended, modiied or terminated orally, orinanymannerotherthanbyan byall oftheparti hereto. Venue. Any lawsuit to enforce this Agreement shall be iiled in Thurston County Superior Court. - . Costs and Attorney': Ee . If any party hereto shall bring any suit, arbitrationoraction againstanothuforreliei declaratoryorotherwise, arising outofthis Agreement, theprevailing party shall have and recover against the otherparty, in additionto all fee. associated withallmatters resolved under this Agreement. Interpretation and Authorization. The parties agree that this Agreement shall not be construed in favor of or against any party. The undersigned warrant and represurt thattheyhave Agreement onbehalfoftheirpanies, TheBoardhasauthorizedits Clarkandhis attorneys haveauthorityto signthis Agreement on behalf of D. Edson Clark, CPA, D. Edson Clark, CPA, P.S., D. Edson Clark, CPA, PLIB, Clark, Raymond Company, CPA, PLLC (and Rachelle A. Benbow, CPA, Rachelle A. Benbow, CPA, PS, Andrew D. Raymond, CPA, Andrew D. Raymond, P.S., Andrew D. Raymond, CPA, PS, and David B. Baumgart, CPA. Non-Admission of Liability. 'I`his Agreement is a compromise of disputed claims between the parties and is the product of serious and extended negotiations. 'l`lre parti 'on of liability. 'l`he parties agree that this Agreement shall have no precedential value for any other matters or lawsuits. 14. Dispute Resolution. 'Ihe parties agree that they shall attuupt to resolve any dispute arising under- this Agreement according to the following sequence of dispute resolution - measures, until the dispute is finally resolved: (1) arbitration betweur the Board and Clark facilitated by Gregg Bertram or soma other arbitrator to be mutually agreed upon by the parties and(2) ifarbitration does not resultin final resolution ofthedispute, takesuch . legal actionasis For WASHINGTON STATE BOARD OF ACCOUNTAN CY RICHARD C. SWEENEY, CPA JANE DOE SWEENEY THOMAS SADLER, CPA JANE DOE SADLER EDWIN G. OLICOEUR, CPA Page 5 of 6 SF-Q0044. . . - ROBERT M. Attorney General 4 . fix.; 3 2 Mary ennysun, SB 1197 Sr. A tAttomey Bruce 'l\1reott, WSBA #15435 Assistant Attorney General . Jody Lee Campbell, WSBA #32233 Assistant Attomey General - . Attorneys for Board For D. EDSON CLARK, CPA D. EDSON CLARK, CPA, P.S. D. EDSON CLARK ASSOC., P.S. D. EDSON CLARK, CPA, PLLC CLARK, RAYMOND COMPANY, CPA, PLLC (and partnership) RACHELLE A. BENBOW, CPA RACHELLE A. BENBOW, CPA, ANDREW D. RAYMOND, CPA ANDHW D. RAYMOND, P.S. ANDREW D. RAYMOND, CPA, P.S. - DAVID B. BAUMGART, CPA QZ {if; Date: ;6`?F1o D. Edson Clark, CPA - ALLIED LAW GROUP, ILC Jan . Greg ers WSBA #26454 Attorney for Clark FAHLMAN, OLSO PLLC By mm ts Kurt . Olson, WSBA #13045 Attorney for Benbow, Raymond, . Baumgart, and affiliated CPA entities Page 6 of . sF-00045 ?jf. I ImRCUURT 1 CIEXPEDITE - WASH. QN0 Hear-in%Set 1me: . - . - Iaou:.0 c1.s.?m_ I - - -DEPUTY -- - - . . STATE OFWASHINGTON - -- . - ARTHUR WEST, - NO: 10-2-02122ORDER OF DISMISSAIWASHINGTON STATE BOARD OF .. - - . 12 ACCOUNTANCY, STATE OF . - WASHINGTON1Ig Washington Board of Accountancy that have been as exempt fom 1Ig 20 record and tile, includingtbe followingBoard's Exhibit A: W'rd1ho on. Log Provided to Mr. West for Inspection- . 22 onlune 30, 2010, . 23 Boarc1's Exhibit B: Unredactcd Version of Records. Provided no West for I I I 24 - Inspection on June 30, 2010, With Redaebed Portions Indicated QRDER . o1y?pa?,wA9ss04??11sr=-0004a I I . PRR-2011-00450 - -Arthur ?Wcst 30, 3 . l" 2: &0m 120 Public: OECEIL reiccivcd .Tum:` . - 2212010-. . - .. 1 5 The zcvicwedihc 6 'Hcdocumcms . . -1-.. . . ll., - 10 - ?1?j??t1??a.g?i?stth?s? ofdqcumuu? withhold I .. 11 ba?cd ??w1z;mudisclosmc of d?Eumcmis based attmm?y- - - i I I3 c1.i?mtp11?vi1cgc hadn been attomcj-clidnqt privileged . I I 15 'I'hc'C0m?? reviewed me proqcss and ixroduct Tm Court . - 16 I 17- sta:EEmdth? I I '18. 120 i11vcstigdti01E1andp0ss1`b1c disciplidc. Many of 19 - I . . 20. been The 1?l;?x40110 I I . sF.??o41 . PRR-2011-00450 . . -- MC 5 THEREFORE, IS HEREBY DEQREED that 2 is I . ., IfpoappealiscilcdwithinROBERTM. MCENNA - - I 13 In I I 15435 - . 14 -AssistantA?t??m?yGen?r41 - . . A1t?m?yf?mD?fcndant . - . 15 - 1 `-18 "'ovkd\ I . I I 20 Pcti1i0nc:P1?0Sc . - . - - -- B?z4?11SF-00048 i PRR-2011-00450 I I (R) - - 1 201] 2 LICENSING ADMINISTRATIVE LAW APR 9 - SEATTLE OFFICE I 2 20}] STATE OF WASHINGTON 4 THURSTON COUNTY SUPERIOR - 5 JOHN SEM, Plaintiff, N0. 10-2-02283-7 EX PA RTE 6 v. ORDER 7 STATE OF et al, Defendants. 8 9 10 On February 24, 2011, the Plaintiff filed a motion for voluntary nonsuit without 11 prejudice, pursuant to CR 41 supported by an affidavit of counsel. 12 NOW, THEREFORE, the do et is strick and the case is DISMISSED. 13 DATED THIS Judge, on ounty Superior Co rt 18 Christine A. .. 19 Submitted by: Approved as to fonn, notioe of pl'GS9l'lif'l'lBI'It waived Christopher W. Bawn, #13417, for Plaintiff Jennifer Steele, AAG, #367 1 23 Ifldichael Rothman, AAG #40119 I 24 Attorneys `for Defendants I CHRISTOPHER W. BAWN - AITORNEYATLLW I 360-357-8907 I OLYMPIA, WA 98501 Fax-570-0274 ORDER OF DISMISSAL I SF-00049 PRR-201 1-00450 .. Sup - - 1 EXPEDITE zu TK WA No Hearing Set 2 HearingisSet: FH 3? 2 Date: 2/18/11 BETTY 3 Time: J- GUULD, CLE The Honorable Judge Paula Casey STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT 8 DEREK E. GRONQUIST, NO. 10-2--O05 02-9 Plainti&Q ORDER 10 MOTION FOR v. SUMMARY JUDGMENT 1 DEPARTMENT OF LICENSING, . 12 Defendant. 13 . 14 This matter came before the above-titled court on December 21, 2010, on Defendant's 15 Motion for Summary Judgment. 16 The Plainti&` appeared pro se and the Defendant was represented by SUSAN L. 17 PIERINI, Assistant Attorney General. . 18 The court reviewed in camera the imredacted copies of documents that we provided to . 19 Plaintiff Mr. Gronquist with redactions. The court is satisied that the redacted material is not I 20 subject to disclosure, but is protected as confidential by RCW 50.13.020, RCW 51.16.070, 21 RCW 82.32.330, and the Public Act, RCW 42.56. 22 In this case, the Department produced materials for the plaintiff with redactions. At 23 the time of production, there was no accompanying brief explanation of the reason for the 24 redactions. No request for an explanation was made. When the lawsuit was Bled identifying - 25 the requestor's issue, the Department provided an explanation for the redactions. The Court is 26 aware of the recent decision in Sanders v. State, 169 Wn.2d 827, 240 P.3d 120 (2010). The oanak Gamma Morrou Fon 1 SUMMARY JUDGMENT (360) 753-2702 I SF-00050 PRR-201 1-00450 1 Court finds that no information was wrongfully withheld in this case. The court finds that the 2 failure of the Department to provide the explanation for the redactions was not a 3 violation of the Public Records Act giving rise to penalties. 4 The Court iinds that there is no genuine issue as to any material fact and Defendant 5 Department of Licensing is entitled to judgment as a matter of law. 6 ORDER 7 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Defendant's . - 8 Motion for Summary is GRANTED. 9 DATED this day of February, 2011Honorable Paula Casey 13 Presented by: 14 ROBERT M. MCKENNA - 15 16 SUSAN L. PIERINI . WSBA N0. 17714 17 Assistant Attomey General 18 Attorney for Defendant 19 20 . . 21 DEREK E. GRONQUIST - PlaintiHoanaa emurmo Morro}: ron 2 . SUMMARY JUDGMENT Olympia, wA98s04-0110 . (360)1ss--2102 - SF-00051 PRR-201 1-00450 EXPEDITE I MAY 6 I I EINoHearing Set ZUII -I I 2 E1 Hearing is Set; . mm Date: LICENSING ADMINISTRATIVE LAW DIVISION IQIOVI: Qui my I 3 Time: The Honorable Judge Paula Casey - 4 - I 7 STATE OF WASHINGTON . . THURSTON COUNTY SUPERIOR COURT I DEREK E. GRONQUIST, NO. 10-2-00502-9 - 9 SUPPLEMENTAL Plaintiff`, ORDER GRANTING . MOTION FOR . v. SUMMARY JUDGMENT ll . I . DEPARTMENT OF LICENSING, - . Defendant. - . . 14 This matter came before the above-titled court on December 21, 2010, on Defendant's 15 Motion for Summary Judgment. The Plaintiff appeared pro se and the Defendant. was I - 16 I represented by SUSAN L. PIERINI, Assistant Attorney General. 17 - This Supplemental .Order adopts the previous Order in its entirety. Additionally, I . 18 pursuant to RAP 9.12, this order will name the documents/evidence called to the court's I 19 attention in the motion for summary judgment. I 20 THE DOCUMENTS CALLED TO THE ATTENTION I 21- Two copies of a Master Business Application for "Maureen's Housecleaning". One 22 copy was provided to Plaintiff Mr. Gronquist with redactions. Another copy of the same . 23 document was lodged with the court for confidential in camera review pursuant to Thurston 24 County Local Civil Rule-16 (2). The court is satisfied that the redacted material is not 25 subject to disclosure, but is protected as confidential by RCW 50.13.020, RCW 51.16.070, I .26 RCW 82.32.330, and the Public Records Act, RCW 42.56. - SUPPLEMENTAL ORDER GRANTING 1 I - I SUMMARY JUDGMENT mv may - . Olympia, WA 98504-01 10 - (360) vs:-2102 . - . SF-00052 PRR-2011-00450 I . I 1 onincn 2 IT IS HEREBY ORDERED, AND DECREED the Defendant's . 3 Supplemental Motion for Stunmaxy Judgment is GRANTED. 4 DATED this 0f May, 2011. - 5 . 5 vAuo.A CASEY. 6 . I I _The Honorable Paula Casey . .7 - Presented by: . 8 . . ROBERT . - 11714 . - Assistant ttorney General -- . - 12 Attorney for Defendant . -13 . I 15 DEREK E. GRONQUIST 1_6 Plaintiff Pro SUPPLEMENTAL ORDER GRANTIN 2 I Morrow 1=o11 JUDGMENT - . 0 1 - . SF-00053 PRR-2011-00450 A I I Cgpy . . I RECEIV EXPEDITE FOSTER PLLC 3 Hearing is set: . (C) 4 Date: Mav 20. 2011 I Time: 9:00 a.m. I I Judge/Calendar: Bruce Hilyer, Visiting Judge MAY [@92 II 5 ATTORNEY GENERAIIS 0 ICE 6 NATURAL. RESOLIRCES DI SIGN- SUPERIOR COURT OF WASHINGTON IN AND THURSTON COUNTYI 7 ARTHUR WEST, I 8 - - Plaintiif No. 07-2-0%399-0 9 . V. ORDER OIR SATISFACTION . 10 JUDGME -- ASSOCIATION or . ASSOCIATION OF WASHINGTON CITIES, WASHIN TON LIEN 11 THURSTON COUNTY, WASHINGTON RELEASE STATE DNR, WASHINGTON STATE, PORT . 12 OF OLYMPIA, HANDS ON CHILDREN I - MUSEUM LOTT, JOHN DOE ACTION 13 ENVIRONMENTAL CONSULTANTS, 14 Defendants. I 15 . 16 1. JUDGIVIENT SUMZIVIARY (Pursuant to RCW 4.64.031%) I I 17 1.1 Judg1nentCreditor: Arthur West, pro se. I 18 . 1.2 Judgment Debtor: Association of Washington Citiezzla Washington non-proiit corporation, by Sheila Gall, its eral counsel, and 19 Foster Pepper PLLC and P. Stephen DiJu1io - 20 1.3 Amount of Judgment: $62,500.00 . 21 1.4 Interest: I 22 1.5 Fees and Costs: - I 23 1.6 Balance OwingORDER ON SATISFACTION OF JUDGMENT -- Fosrzn PEPPER PLLC LIEN RELEASE- 1 I 1111 Avenue, sun-: mo .. Snfru. 98101-3299 Imomz {2061441-4400 Fax (2061441-9700 I sumw.1 . I . SF-00054 I PRR-201 1-00450 - I 1 . 1 2. PROCEEDINGS I . I 2 This matter came before the Court, as Visiting Judge, urstiant to MotIion for 3 Entry of Satisfaction of Judgment. The Court considered all rec?I>rdsl and tiles herein, andIOrders 4 as follows. . I 5 3. JUDGMENT SATISFIED J- LIEN RELEASED 6 -3.1 Judgment creditor Arthur West, pro se, has 'ved payment in the amInmt of 7 $62,500.00 from judgment debtor Association of Washingtol Cities in satisfaction !of the 8 judgment in this matter3.2 Any and all judgment liens arising out of thisiction are hereby releasid, and 10 discharged, including Notice of Lien, Recording Number 42035 3 (March 201 1), recI>rds of I1 Thurston Cotmty. E. 12 3.3 The Clerk of the Court is hereby directed to an shall enter this satist`aoa?x4o1oo PRR-2011-00450 O1ympiu,WA98504-0100 1 IS ORDERED THAT: - 2 To satisfy the judgment her the State of hington is authorized to pay to the 3 pv} The cfu;/1vF (mul' Wluisi?cvpf, . Clerk of the Court,Athe amount of the judgment herein: $2,175; plus costs in the amount of 4 $430; plus interest under RCW 4.56.110(4) Hom the date of entry of the judgment on 5 . April 2010 through May 28, 2010, in the amount of $47.96; for a total of 2,652.96. 6 7 This amount paid into the Co1u?t's registry shall be by the Court Clerk to 3 Plaintiff I 9 Done in Open Court this 2 I day of May, 2010. . 10 2. 12 . Judge Paula cas 13 - 14 Presented by: 15 16 17 Maureen Hart Solicitor General 18 Attorney for Defendants 19 . 20 Approved as to Form: 21 22 23 Arthur West, Plaintiff 24 25 26 ORDER Aumomzmo PAYMENT 2 Ammgg - SF-00063 PRR-2011-00450 Olympia. WA 9850+0100 (360) 753-6200 COUNTY SUPERIOR CMT OLYMPIA YR BETTY COULD THURSTON COUNTY CLERK Date: 05/21/2010 Amt. Date: 05/21/2010 RBCBIPI I1: Cashier ID: SCM Tina: 09:15 Item Casa Number hmunt 01 10-2-00065-9 $2,652.% 5150: Trust--T2ndar . Tutal Due: $2,652.% Check Tendareu: $2,652.96 Change Dua: $0.00 . Paid OY: UR OFFICE OF THE OOU. PRR-2011-00450 . 4 Washington State Court of Appeals . - - - - . . Division Two i ii I I - David Ponzoha. ciuk/Administrator (253) 593-2970 (253) 593-2806 (Fab:) - General Orders, Calendar Danes, Issue Summaries, and General Information at . January 6, 2009 - I .Erik Price . Michael Alan NesteroH` I - . Lane Powell PC Lane.'Powell PC - . 111 Market 1420?5th Ave Ste 4100 - -Olympia, WA, 98501-1070 Seattle, WA, 98101-2338 . . Joanne N. Davies Laura Therese Morse - - Buchalter Nemer Fields Younger Lane Powell PC .18400 Von Karman Avenue, Suite 800 1420 Fiith Ave Ste 4100 . . . Irvine, CA, 92612-0514 Seattle, WA, 98101 David Huey - Melissa Ann Huelsman - - . . - Atbomey Generals . Law Omces of Melissa A Huelsman . . - PO Box 2317 - . 705 2nd Ave Ste 501 - Tacoma, WA, 98401-2317 i . _Seattle, WA, 98104-1715 .- CASE 36245-7-II . Ameriquest Mortgage Company, Appellant, v. State Attomey General, Respondent - Counsel: - -. .- . An opinion tiled by the coiut today in the above case. copy of the opinion is I enclosedVery truly _yours, . I - - -David C. Ponaoha . Court Clerk - - - . - RECEIVED Enclosme I - - cc: Judge Arme_Hi1fsch JAN 0-7..2009 I -- . . . TAGOMA GENERALSERVIGES UNIT . -PRR-zo1j-oo4so . THE OOTJRT OF THE STATE OF WASHINGTON 0 an . - . g_ pmsroun . I . - AMERIQUEST MORTGAGE COMPANY, I No. 3lo245-7-H I I - STATE GENERAL, I - - PUBLISHED-ORINION I II - . I A.C.J. During litigation, Ameriquest Mortgage Company I I released a number of customer loan Itiles the Washington- State Attorney's I (AGO), litigation in a settl ent agreement.I Subsequently,'aIPublic I I Act! request was to the AGO requesting those. files and the - AGO's work product regarding Ameriquest. The AGO thedocuments sought- I I and of proposed disclosure. Ameriquest sought to enjoin - I I the production of documents, arguing thatI_(1) a federal actz the state and - I I I . disclosure of provided fr0mI Ameriquest to the AGO, Ithe AGO I- . decisiontoproducetheir work productwas arbitrary and capricious. court '_Rcw42.s6PRR-2011-00450 - I U. 36245-7-H . I . - the injunction;_ we we reverse the tial court's - -. . order as it improperly combined the- ninjimction with the permanent U- .- injunction tial. we reverse- and remand_to the tial comt for further with following instructions: (1) .the loan should notified have an opportimity to an respond; (2) the federal act does preempt the PRA regarding nonapublic informationlcontained in -- thecustomerloaniil injunction on work product issue. i . FACTS. - . - In 2003, the AGO, association with. the Washington Department of Financial . Institutions, began an investigation under the Consumer Protection Act, l-9.06, into the mortgage lending of Ameriquest related During the co1.u?se ofthe . I - investigation, the two Washington agencies a number of documents can . . be sorted into categoriesThe category of information is thatreceived from Ameriquest through discovery. - These documents included a number of confidential customer loan- files and internal employees' e-mails. The customerloan files included: na customer's full legal name, - .number, driver's license number,. date of credit (FICC) score, credit . income, sources of income, employer?s name, employer's address, HI of . . ployment, of ployment,. name and age of checkingland savings an - accountninformation, identification of other assets, residential residential phone number,. . and wireless telephone number, as well as all terms and conditions of the customer's - aloantansaction . category ormrormanaa imiuded documents providedtotheAGO bythird . parties, including information those filing complaints the AGO's consumer i resomce center.3 The third category includes _documents internally. generated- by the two agencies during the course of the investigation and prosecution the_ case. - Two years into investigation and prosecution of Ameriquest, in Nov ber 2005, the lawsuit between Ameriquest and 49 states and the District of Columbia settledfor $325 million. The agreement included a provision "the State [was to] comply with applicable. . public disclosure- laws provide notice to [Ameiiquest] of the request" to afford "the reasonable opportunity to assert_that the documents subject to the request I .- are n?mjd1s?1?sur?.??' at 165. I at In February 2007, the -Law of Melissa Huelsman tiled an request under - _Washington's PRA, chapter 42.56 RCW, with the AGO, "all records relating to [the] investigation of Ameriquest." CP_at 164. into discussions with Huelsman to focus request and toprioritiae order, of docmnent production. On March. l,`2007, thej . AGO notified of its intent `to disclose the information-requested, including the confidential documents Ameriquest supplied, by_March -15, -2007. 'I`he AGO. attached a list of i 3 _The parties thatrthe second category of documents may be disclosed to Intervener. I _Disclosure of only the first categories of documents is in dispute. . I 4 that despite clause in the ent it only shared the I - . coniidential infomation with the AGO with the belief that the documents would be used by the . - AGO solely for the purpose of examinationand that AGO would maintain the document's . confidentiality. 36245-7-II I - i I . documents that it to produce, including Ameriquest's loan files for -- Washington citizens and internal e-mail of Ameriquest employees.5 - To the immediate disclosure-of documents, Ameriquest filed a complaint for_ injunctive relief with Thurston County Superior Court on March 2007. Huelsman - - - (Intervener) filed a motion to intervene in the All three parties stipulated to, and the it . I trial court entered, an temporary restraining order the release of the Subsequently, Ameriquest filed a motion for a preliminary injunction. Ameriquest . argued thatthe information the intended_to disclosehto the llntervener was - disclosure_by the Gramm-Leach-Bliley (GLBA), 15 U.S.C. 6801 et seq., and was also . n. exempt from disclosure under several PRA. eztemption provisions. Ameriquest argued that - _r11s?1?suQ? of the confidential customer loan Eles conflicted with, and was preempted by, the - GLBA.- Additionally, Ameriquest the necessity of judicial for the decision to waive. ex ptions available the.PRA. Ameriquest specific concerns that the of its confidential documents not consistent with the AGO's behavior - I toward similarly situated companies or requests for similar types of documentsl . Both.the AGO and the Intervener opposed the motion forpreliminary injunction. he AGO acknowledged confidential nature of the docmnents but that GLBA did not l- the PRA. The AGO argued that the preempt PRA based on the exception in the that permits disclosure "to comply with Federal, State, or local laws, rules and other applicable lega1.requii?ements." CP at 187.- In the alternative, AGO . 5 The 'AGO-did not a copy of the PRA request or any other information about the request. - l- sr=-cotta - . - PRR-2011-00450 .36245-7-H U. In I - even -in case of the redactionpolicy for "personal information"' as defined by _Hearst Corp. v. Hoppe, .90 Wn.2d 123,- 133, 580 P.2d 246 (1978), satisiied . prohibitions on disclosure. CP at 1-86Q87. . The court denied Ameriquest's motion for a injunction. cr at 320-24. 'I`he trial court that the "does not preempt the State's law on public disclosure I of document.s." CP at 322. _Additionally, the trial court fotmd that Ameriquest had "no . to assert" variousnercemptions the on the AGO's behalf. JCP at 322. The-trial court l. n. i - ordered the restraining order to tmtil the AGO redaction _of the in with AGO policy. The documents be released to the Intervener - - Ameriquest tiled its petition for review and emergency motion for stay, and I . we ultimately granted both. The infomation documents in dispute have not been disclosed an -totheIntervenerANALYSIS l- . . I - We review all agency actions or challenged under the PRA, RCW 42.56.030 an - through 42.56.520, de novo. RCW. We stand uteiams-or the_trial~court i declarations, memoranda of law, and otherldocumentary See Dawson v. Daly, 120 Wn.2d 782, 788, 845 P.2d 995 (1993Ameriquest argues that the court improperly combined the_ injunction A - . with-a trial on the merits without giving the parties the notice CR 65(a)(2) . The AGO argue that the court's action was proper that-Ameriquest failed . . - PRR-2011-00450 2 36245-7-II to make a sufficient oifer of proof its and ability to develop evidence - - would prove its case at a injimction trial. We agree with I - . Civil Rule 65 governs trial procedure for obtaining injunction. The process i generally progresses from temporary restraining order to preliminary injunction permanent . CR provides, however, that or alter the commencement of . - on the- merits to be advanced and consolidated" with the `injunction application hearing. lf a "court does not expressly state that it is consolidating the injunction hearingiand a . trial on the merits,'l though, 'fit may not render a nnal determination on the merits" at the - - i preliminary injunction hearing. League Women Voters of Wash v. King County Records, an - . nl Elections Licensing Servs. Div., 133 Wn. App. 374, 382, 135 P.3d 985 (2006). The purpose of . this rule, with its federal is to give the parties notice and time to prepare that _they will have a full opportunity to present their cases injunction hearing. See Univ.-of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.- Ct. 1830, 68 L. Ed. 2d -175 (1981) I . (applying Federal Rule of Civil which CR . Ameriquest argues this ?case is analogous to Northwest Association v. - - Washington Utilities and Transport Commission, 141 Wn. App. 168 P.3d 443 (2007), rev; denied, .163 Wn.2d 1049, 187 P.3d iso (2008), ah decision from this courtf In` Northwest . Gas, we the trial court's denial of a injunction under the PRA because "the - trial court did not expressly inform parties that it consolidating the preliminary - n. injunction hearing with a permanent injunction trial on the merits under CR 141 Wn. App. at 114. We then, for purposes of judicial economy, stood in the place of the trialcourt - .. .. - . -. . . i UU 36245-7-11 . injunctiverelief entitled to it. Nw. Gas Ass'n, 141. Wn. App. at 115. After reviewing . 2 a a preliminary injunction, and remanded for trial on themeritsl Nw. 'rz, 141 Wn. . App.at127appears the trial ?0\li't similarly contlated the injunction a tull hearing on the merits without prior notice parties. First, we notethat UU . the court used the of iAt- a irjimction hearing, a successful applicant a likelihood of at a trial on the merits. Here, the UU court Ameriquest had to 'ishow: a) clear legal or equitable right, b) a well-grotmded fear of invasion Uofthat right, and c) that the acts complained of will result injor . - threaten to resultin actual or injury." CP at 322. This standard applies to a - permanent injunction hearing. Second, the trial court entered what amounted to aiinal order on -the disclosure issue. The trial court determined that the "Gramm-Leach-Blilev Act, 15 U.S.C. . 2 etlseq. did Statc's law on public disclosure oil d00um6i1tS" and determined '"Ameriquest [had] no to` assert the intelligence information and I . investigative records ex ption, RCW 42.56.240," or other exemptions under State public - . disclosure laws. CP at 322. Following these Endings, trial court ordered, subject to - - the of documents the Intervener sought. Based on these irregularities, hold . . issuingaiinalorder. We,therefore,reverse. . - .. UU SF-0007rz We could our analysis here- and remand to the tial co1u?t to reconsider Ameriquest's request for apreliminary injunction in accordance with Cl{_65. To conserve the partiesi and the an H. or_AMs1uQU1zsT CUSTOMTERS I I I . Throughout briefing and oral argument, all profess aldeep desire to protect the personal information of the individuals whose Ameriquest loan Hles are at issue. Surprisingly, an though, these individuals have contacted nor made aware of this tug of war over their conidential infomation, nor have they to represent their interests before the . On the uial court must reasonable provision for at least attempted notice to_ - - - all of the Ameriquest loan whose information is being sought for public disclosure. an The trial court shall also reasonable provisions for those loan customers to or otherwise be heard. F1mi11y, until the loan custornersnhave had opportunity to be - . heard and the court has appropriately on.the merits of either a preliminary or permanent injimction, the loan customer's nonpublic personal information- shall Pusuc Raconns Acr-Paarmnmav INJUIQICTIVERELIEF I I injunction serves same purpo as a temporary I - Gas Ass'n, 141 Wn. App. at 115-16. "status quo ante" means the "'last . noncontested condition which the pending Gen.- Tel. C0. ofthe Inc. . Wash. Utils. Trorrsp. Commin, 104 Wn.2d 460,.466, 706 P.2d 625 (1985) (citing State . Rel.- Pqy_Less Drug Stores v. Sutton, 2 Wn.2d 523, 529, 98 P.2d At a ll ?sr=Loo?rs - - . - PRR-2011-00450 36245-7-.the need not prove, and court does not reach or resolve, the- . I I I of the issues the requirements for permanent injunctive relief. Tyler - . . v. Dep 'f ofkevenue, 96 Wn.2d 793, 638 P.2d 1213 (1982). the trial court I . I considers only the likelihood that the plainti&` will ultimately prevail at atrial on the merits by - showing (1) that he a clear legal or equitablenright, (2) that he reasonablyfears will be II invaded by the requested disclosure, and (3) the- disclosure in substantial Tyler I . "Pqoe, 96 Wn.2dIat 792-93. We address each of these three I I I- A. Cllear or Equitable - I - I. GLBA Iestablishes obligation to customers'I nonpublic - - - information. Each financial institution "shall establish appropriate . . . relating to - I I . - administrative, technical, `physical safeguards to the security conidentiality of I l. constuner and information? 15 U.S.C. 6801(b). expands consumer I I protection requiring any nonaftiliated third party that nonpublib personal I - information s`hall not disclose. such information to other person. U.S.C. 6803(c). It is I I on this provision Ameriquest bases its duty to the disclosure of ?information collected I I I II by the AGO. Additionally, there is no dispute that has a clearI interest in-the I I I coniidentiality of its recordsestablish aIclear legal or equitable right, the moving party must show that it is likely I . I to on the merits" at trial. Nw. GasAss'n, 141 Wn. App. at 116 (quoting San Juan I II I v. N0 New 160 Wn.2d 141, 154,157 l'.3d 831 (2007)). Here, Ameriquest claims that I I GLBA Washington's PRA. This is an issue of impressionin washington, but I - to survive the preliminary iniunction must show that it is likely to prove this PRR-2011-60450 I - 36245-7State laws may be preempted by preemption, field preemption or conflict Progressive Animal Welfare Socjr Univ. af Wash., 125- Wn.2d 243, I 265, 834 P.2d 592 (19921). However, "[t]here is a strong presumption finding preemption ontheparty claiming preemption., . [s]tate laws are not superseded by law unless is the clear and manifest purpose of - I Congress}? Pragressive Animal Web'"are Sac jr, 125 Wn.2d at- 265 (quoting Wash. State'- Physicians Ins. Exch, Ass Fisans Corp., 122 Wn.2d .299, 327, P.2d 11054 (1993)). Ameriquest argues that the expressly preempts the state PRA law and mandates nondisclosure of the loan iles in We agree and hold that the GLBA . Congressnenacted to effectuate its policy that "each iinancialinstitution has an . ailinnativen and continuing obligation to respect thenprivacy -of its customers to protect . n' an . security confidentiality of those customers' nonpublic information."6- is . . .6801 i'Nonpublic personal information" applies "personal1y identifiable- financial . (information-(i) provided by.- a consumer to a financial (ii) from any transaction the consumer or any service performed for or otherwise I .i obtained by the Hnancial institution? 15 u.s.C. The GLBA addresses preemption of state law and preserves only ua state, "statute, regulation, order or interpretation" that is not "inconsistent" with GLBA 15 U.s.c. 6807(a). 15 - U.S.C. 6807(b). Therefore, we must determinenvvhether compliance PRA by the AGO I 6 "Nonpublic personal information"' does not "include publicly available information." 15 - U.S.C. . . I 36245-7-II . I . . in this case is with If compliance with the PRA is inconsistent - GLBA, then the GLBA PRA on this point prohibits disclosure. i 2. Nondisclosure Provisions I The Act contains two related. confidentiality provisions. The first provision prevents institutions &om releasing nonpublic personal information without providing _notice to - through any affiliate, disclose to a nonadiliated third party any nonpublic personal information, unless such financial institution provides or provided to the consumeranotice that complie with [15 U.S.C. 6803]. . . 15 680Q(a). Thereisa exception to-this provision in a financial institution . may disclose nonpublic personal informationcomply with aproperly authorized criminal, regulatory investigation . . by Federal, State, or local authorities; or to respond to judicial process or government regulatory authorities having jmi diction over the financial institution . for examination, compliance or other purposes as authorized by law. i - . 15 6802(e)(8). - . The second confidentiality provision expressly the reuse of information disclosed by financial institutionsto nonadtiliated third parties: - - I - - financial institution nonpublic personal information under this section shall- not, . directly or through an affiliate of such-receiving third party, disclose such - information to any other person that is a nonafiiliated party of both the . financial institution and such receiving third party, _unless such disclosure would . - be lawful if made directly to such other person by the financial institution. . . . an 15 U.S.C. 6802(c). Ameriquest that this provision applies to the AGO, - - PRA here, and prohibitsthe transfer of information asm the Intervener. AGO counters that it is not subject the GLBA because it is not anonatiiliated third party,`PRR-2011-00450 - I I 36245-7-statute envisions. The AGO is wrong;Iit is a party andit is to the I I 'GLBA'reuserestrictionss.-I Nonmim Thii-dPm-not apply. Alternatively,'the AGO argues because it is "aHi1iated" with the Intervener I (because the Intervener is a of the public), GLBA prohibitions on disclosure are not . I triggered. These assertions are legally incorrect. I I I I Under`the_ GLBA, a nonafiiliatedI third party is defined as "any entity that is not an I affiliate of, or related by .common ownership or aiiliated byeorporate control with, the financial - I institution, butdoes not a joint ployee of such institution." 15 I I phasis 'I`here is no requirementthat the nonafliliated third party with the_ I I information from the original institution also be a institutions Instead, I language I clearly states that "any entity" that comes into possession of nonpublic personal. I I - infomation is considered a third party and is subject provisions.In Hodes v. US Department of and Development, 532 F. Supp. 108 - I 2008l, the United States District Court of Columbia decided a similar issue.7 Hodes filed a? I - I I I Freedom of Information action against the Department of Housing and Urban Development I. seeking information identifying individuals that held mortgage backed securities - I Government National Mortgage Associationls ?(Ginnie Mae) mortgage backed securities - _fI Hodes, 532 F.I Supp. 2d 111. Hodes made the same argument the AGO makes here, - II . namely, that the GLBAII does not apply to Ginnie Mae because it is not a financial institution. - does notdiscussH0desinits I see"eitation. Resp't's Br. at'28PRR-2011-00450 I - . 36245-7-H . . - The court held the.GLBA's "plain language indicates that 'any' entity may be a - . nona'&iliated third party, not just other financial institutions." Hades, 532 F. Supp. 2d at 115. . - . `Additi?na11y,thccota?tn?ted; I - n. - . [T]he effect- of Hodes's interpretation would be antithetical to the Act's stated purpose, which is, _in;part, to "insure the secruity and confidentiality of i . customer records and information." 'l5 U.S.C. If Hodes were correct that the Act's confidentiality provisions were only applicable to financial - - institutions, nonpublic consumer information could be disclosed to any number of . . third party entities that would be rmbound by the Act's restrictions on the use of - that information, rendering its confidentiality provisions largely meaningless. Hades, 532 F. Supp. at 115 (emphasis added). We agree with the Hades court. _The GLBA's detinition of a "nonaHiliated third party? is purposefully- broad to better protect nonpublic customer information tram those who would it. On this issue,.the situated.no Ginnie Mae. We hold that the AGO is a nonafliliated third party the GLBA's confidentially provisions App1y,* This- . federal provision prohibiting disclosure of information directly conflicts with Washington's PRA - and thus, the GLBA's nondisclosure provisions preempt_the PRA. in 8 The AGO relies heavily on State University v. State Ernplayees' Retirement . Board, 935 A.2d 530 (Pa. 2007), to argue that disclosure is permitted as the AGO and intervener are "afliliates." This reliance is In State, a newspaper requested, rmder - Right to Know Act, information on the salaries and service histories of football coach Joe Patemo and other university otlicers participating ina state-operated retirement fund. Pa. State, 935 A.2d at_ 532-34. Thestate fund objected to disclosure, the GLBA, The - ?c0urt determined that (1) state-operated retirement funds are _not financial institutions regulated under the (2) individual in the plan are not consumers as detined by the and (3) that the GLBA hadno application to state Pa. State, 935 A.2d at 538.- The infomation in State is not of the same nature as here and cannot realistically - . be compared to the private loan information Ameriquest collected hom its customers. . . . . SF-00098 . - - PRR-2011-00450 . . 36245-7-H . Additionally, the AGO ?argues that its transfer of information to Intervener Hot . . prohibited because, as a citizen, the Intervener i ainecessary "af"riliate'i of AGO I and vice versa. This interpretation of "afliliated"` would seem to make all citizens of Washington "affiliates" of all state agencies, those citizens to use the PRA to obtain nonpublic personal information from state agencies. Thus, this inter?pretation runs afoul of the GLBA's specific preemption of inconsistent state law on public disclosure. of private, personal I Ar least under the GLBA, citizens are not "affiliated" with the AGO. . Exception Not'Applicab1e I .. - . _As noted above, rmder 15 U.S.C. ?6802(e)(8), al financial institution may release . nonpublic personal information to a third party, as of an oHicial government . investigation, to ngovemment regulatory authorities, and "to respond to ?[the] judicial ?process." There i no case law what "to respond to [the] judicial process" means;. however, other jurisdictions have the phrase to encompass discovery in civil . . litigationGlobal Mortgage Group Inc., 218 492 (S.D.W.- Va. 2003), the_United 1 States District Court of West- Virginia held disclosure of nonpublic personal information to a - . in a civil action was _pern1issible under "judicial process"' language: - The court finds that 15 U.S.C. 6802(e)(8) permits a financial institutionlto .. disclose the non-public personal financial information of its customers to comply . witha discovery request. 'I`he? phrase "to respond to judicial process" is. syntactically separate and distinct hom the- phrase "to respond to . . . govemment regulatory authorities having jmisdiction over the financial institution for examination, compliance or other purposes as. authorized. by law." See 6802(e)(8). Thus, the "judicial process"_ exemption is independent &om, and in addition to, the exception permitting disclosure to comply with a government regulatory investigation. Maia?,?2is F.1u>. at496. - . l. sr=-0010% U. PRR-2011-00450 3-6245-7-H- . The Court of cited the-GLBA's legislative history to its 1 .- - [T]he legislative history indicates that the House Bill, which added the privacy -- protections to the GLBA, envisaged an independent judicial process exception. See H.R. 106th Cong. 93, 108-09, 124 (1999) (discussing a judicial process 1 - _exception without reference to 'govemment regulatory authorities. . Mark, 218 at 496. . It further concluded that when a must disclose information under a discovery. Z- - - the is responding to a process. Thus,`under the judicial process exception, the financial institution may disclose its `customers' nonpublic personal information inresponse - an to aplaintiff discovery request. Mark, 21.8 F.R.D. at495-96. - - . I _The West_Virginia Suprerne`Court adopted the Court's reasoning in Martino v. U- Barnett, 215 W. Va. 123, 595 65 (2004). It held that was "no- basis for the . eifect of to as no such limitation to application of the term _process' in-the GLBA exception.? 215 at 130The Supreme Court of also judiciallprocess-exception in l- parre'NaticnaI West Li hlasarance Company, -899 So. 2d 218 (Ala. Oct. -8, 2004). After the clauses} syntax, legislative history, and even Black's Law Dictionary's definition of "judicia1 process? the Alabama court agreed that "the phrase 'judicial process' 6802(e)(8) encompasses a court order." Ex parte Nat'! LM: Ins. C0., 899 So. 2d at 227. . We agree these courts and hold that the phrase 'fjudicial process" in 15 U.S.C. 6802(e)(8) includes a court order entered in civil litigation I-lypothetically, here, the lntervener could into litigation with begin the discovery process, and gain access to the - I . . I - 36245-7-H - -- . . client tiles in question a order.9 The hypothetical possibility, however,` could get the infomationdirectly &om Ameriquest a court is not enough - to us that the _-Intervener is entitled infomation through a PRA request. The Intervener asks us -to make numerous assumptions to reach the conclusion that it would be - entitled to the infomation through a process. Only in actual civil litigation may a trial properly review the merits of the Intervener's requests for production relevancy of the - to determine if production is Here, is insutiicient infomation in the record to whether the Intervener is entitled to obtain this nonpublic customer information directly from thus, the Intervener may not take-advantage ofthe exception provided in 15 . I 3.- Eawtoraeeacuon - - - . The indicates that it is redacting Ameriquest-loan tiles in accordance with AGO policy to protect nonpublic confidential infomation in theuloan tiles; the GLBA only - - prohibits release of nonpublic process could take disclosures beyond the ambit of PRA protections. What infomation in the loan customers' aes is publicis a question that the trial court need to address on Certainly any information that is disclosed by county auditor or treasurer records related to any transaction is_ already inthe public realm. On remand, the trial court must address this issue atter the loan customers have been -- . 9.The Intervener mentions in her that me is "making the request forinfomation on behalf . of several of her clients irom the office rather than making an individual request in each - case." Intervener's Br. at 27. She does not explain the type of case she is preparing, the cause 36245-7--Well Grounded Fear of Immediate Invasion- of Rights i . . - we have noted, Ameriquesthas a rightIto keep its business I - I I II Further, the GLBA requires it to seek protection of contidential client information. l)isclosure of I . I I its customers' records to a third party could be an invasion of Ameriquesfs . I I I and theposture of the case_ on will likelybesuch that it willIIgive Ameriquest a well I I fear of immediate invasion of its rights. Under injunction standard, I I Ameriquest likely this second prong. See Tyler Pine Indus., 96 Wn.2d - I . 3 I the trial court determine whether Ameriquest the third pronglof I I the injunction test, that is, Iit will actual if the'I preliminaryinjunction is I I . . _-not At oral Ameriquest articulated of litigation The also_denied Americuesfs preliminary injunction motion for the documents I . . I . I internally generated by the agencies during the course of the investigation and prosecution of . I I . the case. trial court that Ameriquest did not have to assert exI ptions on I behalf of alreadyIdetermined that the trial court hnproperly joined the I . injunction hearing with a on the merits, we review issueSpecifically, the "intelligence information and investigative records ex ption, RCW- I - 42.56.240, the deliberative process eriemption, RCW 42.56.280, or the attorney-client privilege - and attomey product exemptions, RCW 5.60.060 and RCW 42.56.290. . CP at 322. . - . I sr=-oohdz - I - PRR-2011-00450 . 36245-7-II rl . . Ameriquest argues that the its request for- judicial review of - the AGO's decision to disclose documents, It argues that it was not - . to assert PRA onbehalfof AGO, rather. it sought judicial of the.AGO's actions disclosing its attorney work product. The AGO argues that Ameriquest lacks standing - todemand judicial review of its actions. . . . - Ameriquest is a party that will be-aEected by the disclosure ofthe AGO's work product, - and thus, it has standing challenge AGO's decision to disclose documents related _to_ it. - I I Ameriquest may also challenge the decision to waive applicable exemptions. As . . . in Wilson v. Nord, "a complainant with standing has a iirndamental right to have [an] abide by the constitution, statutes, and regulations which- affect the agency's eirercise or I 23 Wn._App. 366, 373, 597 P.2d 914 (1979).- li`urther, 'ithe court the] Technical Eng'rs v. State Personnel 47 Wn. App. 465, 472,` 736- P.2d 280 (1987). . to pursue this claim, however,_ does not necessarily mean Ameriquest 3 can meet the standard fora injunction production of the AGO's attomey -. - To at a trial- on the merits,_Ameriquest must prove-that the`AGO's behavior was I arbitrary and. capricious. claims throughldiscovery, it will be able to the . . necessary infmmation to prove claim. "arbitrary and capricious action" is defined as: . 1 and action, without consideration and_ in disregard of - and . Where there is room for two opinions, action is not arbitrary . and capricious even though one may believe an erroneous conclusion has_ been reached. - - . PRR-2011-00450 I . 36245-7-H - . . I Int'! Fed 47 Wn. App. at 473 (quoting Pierce Couriiy Sheri]? Civil Serv. Ccmm'n for . 98 Wn.2d 690, 695,_658 P.2d 648 (1983)). 'I'his is - - - bef f01'Am?1'iql1eSt to meet 81 trial, as neither party disputes that the decision to disclosethe a - I . AGO work product was a discretionary decision. ameriquest notes its suspicion that "the stubborn unwillingness exercise those exemptions on its own was . _like1y . on- animus towards Ameriquest," it cites uno. evidence or expectation that an evidence arbitrary and capricious behavior will be- produced if to conduct discovery. Appe11ant's Br. at 21. lt only the possibility it will discover - an . an _Without any further showing that Ameriquest will be able to prove its claim at trial, the did err a injunction- on these materials and, absent some I order irom the-trial court, the AGO is free to disclose its workproduct to the . - I showings,thetrial ora;?gum tont11ispointandg1?anta iniunction against this disclosure if some additional of abuse of discretion We and remand to the-trial court for further- Initially, the . customers whose information is at issue must {be notified and given opportunitynton . - . - contact with- these parties. Until the customers have given a reasonable-opporttmity trial must _protect their nonpublic personal infomation nhiom disclosurePRR-2011-00450 . . I 36245-7-H - I trial shall anpreliminaxy injunction hearing using the I . We hold that the GLBA preempts--the State nonpublic personal information is that the.State qualities as a third party "under the GLBA any time it receives nonpublic personal information hom a financial institution that - I Act. Redaction may be annacceptable solution but because the GLBA applies, redaction I . the what information otherwise publicly available. - I - ?We conc1uPRR-2011-00450 . - 1 EXPEDITE Hearing is Set: 2 Date: June 23,2011 JUN Time: 1:30 pm 3 Hon. Judge Gary R. Tabor STATE OF WASHINGTON 8 THURSTON COUNTY SUPERIOR COURT 9 ARTHUR WEST, NO. 10-2-02121-1 10 Plaintiff, FINAL ORDER DENYING MOTION ll v. TO SHOW CAUSE AND DISMISSING CASE WITH 12 CHRISTINE GREGOIRE, PREJUDICE GOVERNOR OF THE STATE OF I 3 STATE OF WASHINGTON, 14 Defendants. 15 I 6 THIS MATTER came before the Court on June 17, 2011, on the Plaintiffs Motion to Show Cause. Plaintiff WEST appeared pro se, and the STATE OF 18 WASHINGTON and CHRISTINE GREGOIRE, Governor of the State of Washington . 19 (Governor), were represented by CHRISTINA BEUSCH, Deputy Attorney General. - i 20 The Court has heard and considered the arguments of the parties, reviewed and 21 considered (1) Plaintiffs Motion to Show Cause; (2) Plaintif`f's Declaration (dated April 7, 22 2011); (3) Plaintiffs Brief (dated April 18, 2011); (4) Defendant's Response to Plaintiffs 23 Motion to Show Cause (dated May 4, 2011); (5) Declaration of Melynda Campbell and 24 attached Exhibits A through (6) Declaration of Narda Pierce, and attached Exhibit 1; (7) 25 Plaintiffs Supplemental Memorandum (filed June 2, 2011); (8) Defendant's Supplemental 26 FINAL ORDER DENYING 1 ATTORNEY GWEBAL OF WASHINGTON Morrow ro snow CAUSE AND DISMISSING CASE oaympis, wa 98504-0100 PREJUDICE (No. 10-2-02121-1) SF-00086 PRR-2011-00450 1 Brief (dated June 7, 2011); (9) Second Declaration of Narda Pierce and attached Exhibit 11; and 2 (10) the pleadings and records filed in this case. 3 NOW THEREFORE, the Court enters the following FINDINGS OF FACT, 4 CONCLUSIONS OF LAW, AND ORDER: 5 FINDINGS OF FACT I 6 1. Plaintiff] Arthur West submitted a public records request, dated January 19, 2010, *7 to the Govemor requesting "all of the records being withheld from public 8 disclosure by the office of the Govemor under color a [sic] claim of executive 9 privilege, from 2007 to present Campbell Declaration 1[ 4. 10 2. In a letter, dated September 3, 2011, the office of the Govemor informed Mr. West ll that those records for which executive privilege had been waived were available for 12 inspection or copying. Campbell Declaration 1[ 8. A privilege log was prepared 13 and made available to Mr. West for those records for which executive privilege 14 continues to be asserted. Campbell Declaration il 7. 15 3. Mr. West served this lawsuit on September 13, 2011, and filed it September 24, 15 2011, without having made arrangements to inspect or copy the records that had 17 been produced on September 3, 2011, or the accompanying privilege log. 18 Campbell Declaration 1[ 9. Mr. West did not pick up copies of the records and the 19 privilege log until September 27, 2011. Campbell Declaration 11 10. 20 4. During the pendency of the case, the of the Govemor identified additional 21 records for which executive privilege was asserted during the time period in 22 Mr. West's request. Campbell Declaration 11 6, n. 1; Pierce Second Declaration 11 4. 23 5. The Govemor waived executive privilege for some of these additional records and 24 produced them to Mr. West. Pierce Second Declaration 1[ 5. The Govemor 25 continues to assert executive privilege for the remaining additional records, and a 26 CAUSE AND DISMISSING CASE WITH Pnaruoica (Ne. to-2-02121-1) SF-00087 PRR-2011-00450 1 second privilege log was prepared and provided to Mr. West. Pierce Second 2 Declaration 1] 6. - 3 6. The records that are the subject of this case are memoranda or communications 4 with senior advisors and senior executive staif to or from the Governor or prepared 5 specifically for the Govemor's consideration. Pierce Declaration 1] 10; Pierce 6 Second Declaration 1] 3. The exemption logs identify each record by date, author 7 and recipient. In addition, for each record where executive privilege is being 8 asserted, the log describes the subject matter of each record and the context in 9 . which the privilege is asserted. Campbell Declaration 1] 7, Exhibit Pierce 10 Second Declaration 1] 6, Exhibit J. ll 7. Narda Pierce, Legal Counsel to the Govemor, reviewed all of the records produced 12 - to, and withheld from, Mr. West. She discussed the subject matter in the records 13 with the Govemor's advisors as necessary. .She consulted with the Governor and 14 prepared the determinations regarding waiver or assertion of executive privilege. 15 Pierce Declaration 1]1] 6-10; Pierce Second Declaration 1]1] 5, 16 8. Mr. West's Complaint and Motion to Show Cause ask this Court to rule that a 17 gubernatorial executive privilege is not an exemption under Washington's Public 18 Records Act, Ch. 42.56 RCW (PRA), and that a denial of records based on 19 executive privilege is a violation of the PRA as a matter of law entitling Mr. West 20 to penalties. 21 9. The Governor asks this Court to rule that gubernatorial executive privilege, 22 grounded in the separation of powers under the Washington State Constitution, is 23 an exemption under the PRA, and that the assertion of executive privilege is not a 24 denial of a record in violation of the PRA. 25 26 3 CAUSE AND DISMISSING CASE WITH Olympia, wx (No. 10-2-02121-1) SF-00088 PRR-2011-00450 CONCLUSIONS OF LAW 2 1. The only issue before the Court is whether the Govemor may assert a gubematorial 3 executive privilege, grounded in the separation of powers under the Washington 4 State Constitution, as an exemption under the PRA. 5 2. As a matter of law, the Govemor may assert executive privilege, grounded in the 6 separation of powers under the Washington State Constitution, as an exemption 7 under the PRA. 8 3. Constitutional privileges are incorporated as exemptions to the PRA through the 9 operation of RCW the "other statute" provision. 10 4. Because executive privilege is a constitutional privilege, it constitutes an exemption 1 1 under RCW 12 5. A legislative enactment is not required for an exemption to be recognized through l3 the "other statute" provision. If it were, however, RCW 43.06.010, which 14 specifically recognizes the Govemor's constitutional and general powers and duties, 15 would satisfy that requirement. 16 6. The constitutional basis of the gubematorial executive privilege and public interests 17 supporting that privilege are analogous to those recognized by the United States 18 Supreme Court and federal courts for presidential privilege, and recognized by 19 other state courts forigubernatorial privilege. As such, the three-part-test adopted in 20 federal and state cases for assessing presidential and gubematorial executive . 21 privilege is wholly incorporated into the PRA in defining the exemption. 22 7. If the Govemor asserts executive privilege with specificity, the records are 23 presumed privileged. This presumption can be overcome if the requester 24 demonstrates a particularized need. for the records, and the court determines that the 25 need outweighs the constitutional interests in preserving the chief executive's 26 CAUSE AND DISMISSING CASE WITH orympa, wA9sso4-0100 PREIUDICE (No. 10-2-02121-1) SF-00089 PRR-2011-00450 - 1 privilege under the principles of separation of powers and the public interests 2 identified in the relevant federal and state cases. 3 8. In this case, each record for which executive privilege was asserted, including those 4 for which the privilege was waived, were individually reviewed and assessed by the 5 Governor's Legal Counsel. Recommendations were provided to the Govemor, 5 . upon which determinations of privilege and waiver were made based on the subject 7 matter and nature of the records. The records were memoranda and 8 communications between the Govemor and her senior advisors and senior staff or 9 prepared for consideration by the Govemor in the exercise of her constitutional 10 powers as the chief executive officer ofthe state. 11 9. Mr. West offered no basis to find that the Govem0r's assertion of privilege was 12 insufficient or that the presumption of privilege should be overcome. Mr. West 13 simply disagrees with any assertion of executive privilege and requested all records 14 for which the privilege had been asserted for a certain time period. 15 10. The Governor has not denied Mr. West the opportunity to inspect or copy a public 16 record in violation of the Public Records Act, Ch. 42.56 RCW. Plaintiff Arthur 17 West is not entitled to penalties or any other relief under the Public Records Act, 18 Ch. 42.56 RCWFINAL ORDER DENYING 5 ATTORNEY GENERAL OF WASHINGTON Motion ro snow CAUSE AND DISMISSING CASE WITH wa 10-2-02l2l-I) sF-00090 . PRR-2011-00450 1 ORDER 2 Therefore, IT IS HEREBY ORDERED that:- 3 a. Plaintiffs Motion to Show Cause is denied; 4 b. Plaintiffs Complaint is dismissed with prejudice; and 5 c. Each party is to bear its own costs and fees. A 6 I . 7 DONE in open courtthis 5day of I 2011 JUDGEG YR TAB 10 11 12 Presented by: 13 *4 Christina Beusch I5 Deputy Attorney General 16 Attomey for Defendant 17 18 19 Approved as to Form: 20 21 iff? hur West 22 Plaintiil Pro Se 23 24 25 - 26 FINAL ORDER DENYING 6 ATTORNEY GENERAL OE MOTION TO sH0w CAUSE AND DISMISSING CASE WITH wa assoc-moo Piuzxunrcis (N0. 10-2-02121-1) - - SF-00091 PRR-2011-00450 1 UL ZE 2Ull STATE OF WASHINGTON 8 THURSTON COUNTY SUPERIOR COURT 9 FREEDOM FOUNDATION, a 10 Washington nonprofit corporation, NO. 11-2-00774-7 11 Plaintiff, 12_ FINDINGS OF FACT, v. CONCLUSIONS OF LAW, 13 AND FINAL ORDER 14 CHRISTINE O. GREGOIRE, in her . official capacity as Governor of the 15 State of Washington, 16 - Defendant. 17 . 18 19 20 This matter came before the Court on June 17, 2011, on cross-motions for I 21 summary judgment. Plaintiff Freedom Foundation appeared through Michael 22 Reitz. Defendant Christine O. Gregoire, Governor of the State of Washington, 23 appeared through Alan D. Copsey, Deputy Solicitor General. Following oral 24 argument and an oral ruling, the Court requested additional brieing and argument, 25 which was heard on July 15, 2011. 26 i FINDINGS OF FACT, CONCLUSIONS 1 ATTORNEY GENEFAL OF 1 or LAW, AND FINAL oaoan SF-00092 **25 SE PRR-2011-00450 (360) 753-6200 1 The Court has heard and considered the arguments of the parties and 2 reviewed and considered the records, files, and pleadings herein, including (1) 3 Amended Complaint for Disclosure of Public Records; (2) Defendant's Answer to 4 Amended Complaint for Disclosure of Public Records; (3) Defendant's Motion for 5 Summary Judgment, and attached declarations and exhibits; (4) 6 Opposition to Defendant's Motion for Summary Judgment and P1aintih?'s Cross- . 7 Motion for Summary Judgment, and attached declarations and exhibits; (5) 8 Defendant's Reply on Defendant's Motion for Summary Judgment and Response 9 to Plaintiffs Cross--Motion for Summary Judgment; (6) Plaintiff's Reply to 10 Defendant's Response/Reply on Cross `Motions for Summary Judgment; (7) 11 Plaintiffs Opening Brief Regarding the Application of Executive Privilege; (8) 12 Defendant's Response Regarding Application of Executive Privilege; and (9) 13 Plaintiffs Reply Regarding the Application of Executive Privilege. 14 Having considered these argtunents and materials, the Court now enters the 15 following Findings of act, Conclusions of Law, and Final Order. 16 or FACT 17 The Court finds as follows: . 18 1. On April 5, 2010, Plaintiff Freedom Foundation submitted a public 19 records request to the of the Governor, identifying and requesting eleven 20 documents for which executive privilege had been asserted in response to previous 21 records requests. . 22 2. On April 8, 2010, the Office of the Govemor responded by producing 23 some of the requested documents and providing an estimate of the time required to 24 review the remaining documents for possible release. 25 26 em. 2 PRR-2011-00450 O]ym 1 3. Instead of simply reasserting executive privilege because the privilege 2 has been asserted previously for the requested documents, the General Counsel to_ 3 the Governor, as designated by the Governor, reevaluated each document to 4 determine whether executive privilege would still be asserted or would be waived, 5 based on an assessment whether disclosure under the circumstances would interfere 6 with the Govemor's ability to obtain candid opinions and advice relating to her 7 constitutional decision-making or policy-making functions. 8 4. On August 25, 2010, after completing the review of each docrunent, 9 the Office of the Govemor waived executive privilege for some documents and 10 produced them. The production was accompanied by a privilege log and letter 11 from the General Counsel to the Governor describing each document that was 12 withheld or redacted and explaining the basis for asserting executive privilege for 13 the document. The letter and privilege log described each privileged document as a 14 commrmication between the Governor and an Executive Policy Advisor or member 15 of the Govemor's executive staff containing advice, recommendations, discussion, 16 or instructions relating to decision-making or policy-making functions within the 17 Govemor's constitutional responsibilities. . 18 5. Of the eleven documents requested, the Office of the Govemor 19 produced five documents in their entirety and claimed executive privilege for Eve 20 documents that were withheld in their entirety and for handwritten notes by the 21 Govemor that were redacted nom one document. 22 6. On April 4, 2011, Freedom Foundation initiated this action by Bling a 23 Complaint for Disclosure of Public Records. Its Amended Complaint for 24 Disclosure of Public Records was filed on April 6, 2011. Freedom Foundation 25 challenged the Govemor's assertion of gubernatorial executive privilege for the six 26 FINDINGS o1= FACT, CONCLUSIONS 3 ATTORNEY GENERAL OF WASHINGTON or LAW, AND FINAL ORDER mm S: I documents that were withheld or redacted, but raised no challenge, regarding the 2 production ofthe remaining six doctunents. 3 7. The Governor timely answered the amended complaint on April 25, 4 201 1. 5 8. The Court heard oral arguments on cross-motions for summary 6 judgment on June 17, 2011, addressing whether an executive privilege based on 7 state constitutional separation of powers should be recognized in Washington as an 8 exemption under the "other statute provision of the Public Records Act, in RCW 9 After hearing arguments, the Court entered an oral decision 10 recognizing the privilege and requested additional briefmg and argument on 11 application of the privilege to the doctunents at issue. 12 9. Freedom Foundation has not attempted to demonstrate any specific, 13 particularized need for the documents that might outweigh the constitutional and 14 public interests supporting executive privilege. 15 CONCLUSIONS OF LAW 16 At issue in this case is whether the Governor may claim a qualitied executive 17 privilege, grounded in the separation of powers under the Washington Constitution, 18 as an exemption under the "other stat11te" exemption of RCW and, if 19 so, whether the records at issue in this case fall within that privilege and exemption. 20 The Court concludes as follows: 21 1. The Otiice of the Govemor is an "agency" as defined in the Public 22 Records Act, RCW 42.56.01 0( 1). 23 2. Constitutionally-based privileges are incorporated as exemptions 24 under the "other statute" provision of the Public Records Act, RCW 42.56.07 25 26 (scm 1534200 I by the language of that statute, without any need for any other statute to reference a 2 speciic constitutional right or privilege. . 3 3. If, however, RCW 42.56.070( 1) were to require that a different statute 4 cite a specific constitutional right or privilege for that right or privilege to be 5 incorporated as an exemption, RCW 43.06.010 constitutes an "other statute" that 6 references the Governor's constitutional duties and powers sufliciently to 7 incorporate gubernatorial executive privilege grounded in separation of powers as 8 an "other statute" exemption under RCW 9 4. In United States v. Nixon, 418 U.S. 683, 707-13 (1974), the Court 10 recognized a qualified presidential executive privilege grounded in separation of 11 powers under the United States Constitution. Applying that decision, state courts 12 have recognized a qualified gubernatorial privilege grounded in state constitutional 13 separation of powers. Those cases provide persuasive authority in Washington. 14 5. Based on the reasoning and analysis of those cases, the Court 15 concludes that the Governor of Washington possesses a qualifred executive 16 privilege grounded in separation of powers under the Washington Constitution, and 17 that privilege therefore may be asserted as an exemption in response to a request for 18 records under the Public Records Act, RCW 42.56. 19 6. A challenge to the Governor's assertion of executive privilege as an 20 exemption to a request for records under the Public Records Act should be analyzed 21 using the three-part test established in United States v. Nixon, 418 U.S. 683, 707-13 22 (1974), and incorporated into the gubernatorial executive privilege recognized in 23 the courts ofthe other states. 24 7. In the first step of the three-part test, the Governor's formal assertion 25 of executive privilege for specific documents establishes a presumption that the 26 Sm. 5 PRR-2011-00450 WA 98504.0100 cseowss-S200 1 privilege applies to those documents. The Governor or her representative formally 2 asserts the privilege by declaring that the Govemor or her designee has reviewed 3 each requested document and determined that it falls within the privilege, because it 4 is a cornrnunication to or from the Governor that was made to foster informed and 5 sound gubernatorial deliberations, policymaking, or decision--making; and that 6 production of the document would interfere with that function. 7 8. In the letter from Narda Pierce, General Counsel to the Govemor, to 8 Scott St. Clair, Evergreen Freedom Foundation, dated August 25, 2010, and in the 9 accompanying Privilege Log, the Govemor formally and adequately asserted a 10 constitutionally-based gubernatorial executive privilege for the six documents that 11 were withheld or redacted. That assertion of the privilege is confirmed in the 12 Declaration of Narda Pierce, dated May 2011, provided to the Court as an 13 attachment to Defendant's Motion for Summary Judgment. A presumption that the 14 privilege applies therefore was established. 15 9. 1 In the second step of the three-part test, a requester may overcome the 16 presumption and obtain production of the documents at issue by demonstrating a 17 particularized need for the documents and identifying an interest that could 18 outweigh the public interests and constitutional interests served by executive 19 privilege. It is this opportunity to obtain privileged documents by demonstrating 20 particularized need and interest that makes executive privilege a qualified privilege. 21 If a sufficient showing is not made, however, the prestunption is not overcome, the 22 analysis is at an end, and the privilege is upheld. 23 10. Freedom Foundation did not offer any showing of particularized need 24 for any document at issue. Therefore, the presumption that executive privilege 25 26 gz miso 1 applies to the six documents that were withheld or redacted was not overcome and 2 no fmther analysisof the privilege is necessary. i 3 ll Because Freedom Foundation did not make a sufficient demonstration 4 of need and interest in this case, there is no need for the Court to proceed to the 5 third part ofthe three-part test or to conduct in camera review. 6 12. Qualified executive privilege was properly claimed for the six 7 documents at issue in this case, and those documents are exempt from production 8 under the Public Records Act through incorporation of executive privilege as an 9 exemption under RCW 42.56.070( 1). 10 13. Because executive privilege was properly asserted for the documents 11 at issue in this case, there has been no denial of records in violation of the Public 12 Records Act, Row 42.56. 13 14. Plaintiff Freedom Foundation is not entitled to any penalty, costs, fees, 14 or other relief under the Public Records Act. 15 15. Any Ending or conclusion that is improperly designated is deemed to 16 be redesignated to preserve its operation and effectFACT, coNcLUs1oNs 7 or LAW, AND rum. oiunmz ,0 Bu W, PRR-2011-00450 I ORDER 2 Based upon the foregoing, it is hereby ORDERED as follows: 3 1. Defendant's Motion for Summary Judgment is GRANTED. 4 2. P1aintifl:'s Cross-Motion for Summary Judgment is DENIED. 5 3. Plaintiffs Amended Complaint is DISMIS SED with prejudice. 6 4. Each paxty is to bear its own costs and fees. 7 Done in open court this day of July, 2011. 8 .9 10 . 11 Judge Carol Murphy 12 Thurston County Superior Court . 13 . Presented by: 14 15 3 16 Alan D. Copsey 17 Deputy Solicitor General 18 Attorney for Defendant 19 - 20 Notice of Presentation Waived and Approved as to Form: 21 I 23 Michael J. Reitz 24 Attorney for Plaintiff 25 A 26 ING 8 ATTORNEY GENERAL OF WASHINGTON PRR-2011-00450 01ympi?.WA98504?01?? (360) 753-6200 I no cme: I NOV Q4 i IN THE SUPREME COURT OF THE STATE OF WASHINGTON AMERIQUEST MORTGAGE COMPANY, a Delaware corporation, - Respondent, No. 82690-1 v. EN BAN WASHINGTON STATE OFFICE OF THE ATTORNEY GENERAL, Filed NDV 04 ZUIU Petitioner. J. This case concerns the application of certain federal privacy laws to a request for information brought under the State's Public Records I Act (PRA), chapter 42.56 RCW. The Washington State Office of the Attomey i General (AGO) obtained loan files, e-mails, and other papers from Ameriquest Mortgage Company during its investigation of Ameriquest's lending practices. The AGO also generated its own documents and received other information directly from consumers who filed complaints about Ameriquest. A member of the public, Melissa A. Huelsman, invoking the PRA, asked for records from the investigation, sF.o?1?o PRR-2011-00450 I Ameriquest Mortgage Co. v. Wash. State Ojice ofthe Attjz Gen., No. 82690-1 I I and the AGO wants to disclose certain information, including names, addresses, I phone numbers, and interest rates. Ameriquest does not obj ect to the AGO I disclosing information it received from individual constuners. Ameriquest does object to the AGO disclosing information it received hom Ameriquest. The disputed issue is whether, and to what extent, the federal Gramm-Leach-Bliley Act (GLBA), 15 U.S.C. 6801-6809, and the relevant Federal Trade Commission (FTC) rule, preempt the PRA or otherwise bar the AGO from disclosing information it received from Ameriquest. . I I. STATEMENT OF THE CASE . I A. Overview ofthe GLBA and the FTC rule In the GLBA, Congress enacted the federal- policy requiring financial I I institutions to "respect the privacy of its customers" and "protect the security and I confidentiality of those customers' nonpublic personal inf`ormation." 15 U.S.C. I I 6801(a). Pursuant to the rule-making authority granted in the GLBA, 6804, the I FTC adopted Privacy of Constuner Financial Information, 16 C.F.R. 313.1 Under lThis FTC rule has been upheld against constitutional and administrative law challenges. See Trans Union LLC v. FITC., 295 F.3d 42, 46 (D.C. Cir. 2002); Individual Reference Servs. Group, Inc. v. EIZC., 145 F. Supp. 2d 6, 26, 31 (D.D.C. 2001). Since we granted review, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (July 21, 2010), which included amendments to the GLBA. See Dodd- Frank Act 1093, 124 Stat. at 2095-97. The amendments appear to take away the rule making and enforcement authority granted in 15 U.S.C. 6804-6805 over mortgage lenders such as Ameriquest from the FTC, transferring it to the newly created Bureau of Consumer Financial Protection. See Dodd-Frank Act 1093, 124 Stat. at 2095-96. However, the parties agree the FTC rule applied when the acts in question occurred. We therefore apply the FTC rule. . 2 - sr=.oo1o1 PRR-2011-00450 Ameriquest Mortgage C0. v. Wash. State Ojjice ofthe Attfy Gen., No. 82690-1 these federal privacy protections, a financial institution is not allowed to disclose a consumer's nonpublic personal information to a nonaffiliated thi1?d party,2 unless the consumer receives a prior notice and an opportunity to opt out. 15 U.S.C. 16 C.F.R. The notice must describe the financial institution's privacy policies and practices, including the kinds of protected information that the financial institution discloses to nonaffiliated third parties. 15 U.S.C. 6803; 16 C.F.R. 313.6. A separate opt out notice must "clearly and conspicuously" describe the consumer's right to opt out of the financial institution's disclosures of protected information and must give the consumer a "reasonable means" to exercise that right. 15 U.S.C. 6802(b)(l); 16 C.F.R. If after giving proper notice and a reasonable opportunity to opt out, the consumer does not opt out, then the Hnancial institution may disclose nonpublic personal information to nonaffiliated third parties. 15 U.S.C. 6802(a)- 16 C.F.R. The disclosure must be consistent with the policies described in the notice. See 15 U.S.C. 16 C.F.R. Several exceptions to the financial institution's notice and opt out obligation are set forth in 6802(e) and 16 C.F.R. 3l3.14--.l5. Some of the exceptions are 2The GLBA defines "'nonaffiliated third party"' as "any entity that is not an affiliate of, or related by common ownership or affiliated by corporate control with, the financial institution, but does not include a joint employee of such institution." 15 U.S.C. 6809(5). Bin limited circumstances not relevant here, an opportunity to opt out does not have to be given. See 15 U.S.C. 6802(b)(2); 16 C.F.R. 313.13. . 3 Ameriquest Mortgage Co. v. Wash. State Ojfice ofthe Attjw Gen., No. 82690-1 relevant here. The financial institution does not have to give notice if the disclosure is done "with the consent or at the direction of the consumer," 6802(e)(2); 16 C.F.R. or is necessary to, among other things, "comply with Federal, State, or local laws, rules, and other applicable legal requirements," 6802(e)(8); 16 C.F.R. or "comply with a properly authorized civil, criminal, or regulatory investigation," 6802(e)(8); 16 C.F.R. These federal restrictions also prohibit a nonaffiliated third party from reusing or redisclosing any protected infomiation received from a financial institution. The receiving nonafiiliated third party may disclose nonpublic personal infomation to its affiliates and those of the financial institution. 15 U.S.C. 6802(c); 16 C.F.R. However, the receiving nonafliliated third party may not reuse or redisclose the nonpublic personal infomation to another nonaffiliated third party unless an exception applies or the reuse or redisclosure would be lawf`u1 if done by the financial institution. 15 U.S.C. - 1`6 B. Factual and procedural history 'I`he AGO accumulated thousands of pages of documents when it investigated Ameriquest's lending practices for violations of the Consumer Protection Act, chapter 19.86 RCW. Ameriquest delivered loan files, e--mails, Ameriquest Mortgage C0. v. Wash. State Ojfice ofthe Attjv Gen., No. 82690-1 intemal customer complaint files, and other doctunents to the AGO. Individual customers of Ameriquest gave infomation to the AGO through its consumer complaint process. The AGO also developed its own documents as the investigation unfolded. None of these documents are included in the appellate record, but an Ameriquest employee, in a sworn declaration, summarized the contents of the loan files that Ameriquest gave to the AGO: [T]he loan files produced by Ameriquest to the AGO would, at minimum, include a customer's full legal name, social security number (possibly an actual copy of the social security card as well), driver's license munber (possibly a copy of the actual license as well), date of birth, credit (FICO) score, credit report (which would identify mortgages and consumer credit infomation such as name of credit card company, amount charged, amount paid, outstanding balance, timeliness of payments), income, sources of income (which could include a copy of the borrower's paystub, W2, personal and business tax retums, business profit and loss statement), emp1oyer's name, employer's address, length of employment, nature of employment, name and age of any children, checking and savings accotmt information (bank statements, deposit verification), identification of other assets (stocks, bonds, life insurance net cash value, retirement fund holdings, net worth of business), residential address, residential telephone number, personal wireless telephone number, as well as all tems and conditions of the cust0mer's . transaqtipn etalClerk's Papers (CP) at 118. The employee also stated that the Ameriquest e-mails given to the AGO "contain confidential customer infomation." CP at 119. On March 21, 2006, a consent decree terminating the AGO's investigation was entered in King County Superior Court. The decree included a provision relating to the .. 5 . sF.??1o4 PRR-2011-00450 Ameriquest Mortgage Co. v. Wash. State Ojfice ofthe Attfy Gen., No. 82690-1 PRA: "If the State receives a request for documents provided by an Ameriquest Party . . . the State shall comply with applicable public disclosure laws and provide notice to the Ameriquest Parties of the request that will afford the Ameriquest Parties the reasonable opportunity to assert that the documents subject to the request are exempt from disclosure." CP at 168. Huelsman is an attomey whose practice specializes in predatory lending cases, and she has represented former customers of Ameriquest. On February 5, 2007, she gave the AGO a request for "[a]ll records relating to [the] investigation of A1neriquest." CP at 132.4 In follow-up discussions with the AGO, Huelsman clarified that she wanted the borrowers' names, addresses, and loan terms and costs, but not the b0rrowers' Social Security numbers, account numbers, and the like. The AGO notified Ameriquest that it intended to comply with Huelsman's request. Ameriquest sought an injunction against the AGO. The trial court entered a temporary restraining order prohibiting the AGO's intended disclosures to it Huelsman. In a motion for a preliminary injunction, Ameriquest asltedthe court to enjoin the AGO's disclosure of five types of documents: (1) Ameriquest's customer loan files, (2) Ameriquest's internal customer complaint files, (3) Ameriquest's employee e-mails, (4) Ameriquest's trade secrets and proprietary 4'l`he public records request was tiled by Christina Latta, a colleague of Huelsman's. Huelsman, Ameriquest, and the AGO treat the request as Huelsman's, and therefore so do we. - 6 - I Amertquest Mortgage Co. v. Wash. State Ojfice ofthe Attfy Gen., No. 82690-1 infomation, and (5) the AGO's internally produced documents. Ameriquest did not object to disclosure of the AGO's consumer complaint files, as long the disclosed documents did not include information given by Ameriquest. The trial court denied Ameriquest's motion, concluding that, among other things, the GLBA "does not preempt the State's law on public disclosure of documents." CP at 322. However, the court left the temporary restraining order "in effect until the AGO completes a thorough redaction of exempt personal and confidential information from the records." CP at 323.5 The Cotut of Appeals reversed, holding that compliance with the PRA is inconsistent with the GLBA, then the GLBA preempts the PRA on this point and prohibits disc1osure." Amertquest Mortgage Co. v. Attjw Gen. of Wash., 148 Wn. App. 145, ..159, 199 P.3d 468 (2009). Because the AGO is a nonaffiliated third party under the GLBA and Huelsman is not an affiliate of the AGO, the Court of I Appeals concluded that the GLBA applied to the AGO's proposed disclosure to Huelsman. Id at 162. The Court of Appeals remanded to the trial court, concluding that "[w]hat information in the loan customers' files is public is a factual question that the trial court will need to address." Id at 165. We granted t.he AGO's petition for review "only on the issue of whether federal law preempts or precludes disclosure of information in the loan files held 5This statement about exemptions for sensitive information appears to refer to the p1?ivacy protections of the PRA, rather than the GLBA or the FTC rule. - 7 - Ameriquest Mortgage Co. v. Wash. State Ofice ofthe Attjw Gen., No. 82690-1 by the Attomey General." Wash. Supreme Court Order, Ameriquest Mortgage Co. v. Wash. State O_/Yice ofthe Attfy Gen., No. 82690-1 (July 7, 2009). II. ANALYSIS The privacy protections in the GLBA and the FTC rule apply to any "nonafiiliated third party" that obtains "nonpublic personal information" from a "f1nancial institution." 15 U.S.C. 6802(c); 16 C.F.R. The parties agree that Ameriquest is a "financial institution" and that the AGO received "nonpublic personal inf`ormation" from Ameriquest. (Ameriquest was permitted to share this protected information with the AGO under the exception for "a properly authorized civil, criminal, or regulatory investigation? 15 U.S.C. 6802(e)(8); 16 C.F.R. The AGO does not challenge the Court of Appeals' holding that the AGO is a nonaffiliated third party in this case. The AGO's concession aside, the parties' arguments raise several questions. I A. Do the GLBA and the FTC rule's prohibitions on redisclosure apply if the AGO's intended recipient is a member ofthe public? When a nonaffiliated third pa1?ty receives nonpublic personal information from a financial institution, it may h?eely disclose the information to its affiliates. 15 U.S.C. 6802(c); 16 C.F.R. The AGO argues that Huelsman, as a member of the public, is an affiliate of the AGO, and therefore . - Ameriquest Mortgage Co. v. Wash. State Ofice ofthe Atty Gen., No. 82690-1 the GLBA and the FTC rule permit disclostu?e.? The AGO is incorrect, and we are not persuaded by its citation of State University v. State Employees Retirement Board, 594 Pa. 244, 935 A.2-d 530 (2007). In State, the Supreme Court of concluded the GLBA did not apply because "govemment and the general public could hardly be more closely affiliated.".Id. at 257. However, "affiliate" is a defined term, and State mistakenly failed to analyze the definition. An "'affiliate"' is "any company that controls, is controlled by, or is under common control with another company." 15 U.S.C. 6809(6); 16 C.F.R. 3l3.3(a) (emphasis added). A in turn, is a "corporation, limited liability company, business trust, general or limited partnership, association, or similar organization? 16 C.F.R. (defining Neither the AGO nor Huelsman is a company; they cannot be affiliates of each other. Therefore, the AGO may not freely disclose nonpublic personal information to Huelsman, tmless another ground exists for doing so. B. Does the GLBA or the FTC rule permit disclosure of unprotected information after nonpublic personal information has been redacted? The AGO argues that the GLBA and the FTC rule allow it to redact any nonpublic personal information and disclose the rest. In its brief, the AGO ?The AGO's briefing at this court did not challenge the Court of Appeals' holding on this point. But the AGO has not conceded the issue either, and it is highly relevant to the broader question of whether the GLBA and the FTC rule preempt or preclude the AGO's disclosure. We therefore decide the issue. - 9 - Eiffoiim-.0 Ameriquest Mortgage Co. v. Wash. State Ojfice ofthe Attjv Gen., No. 82690-1 indicates it wants to disclose names and addresses "because they already were a matter of public record for the mortgages at issue." Suppl. Br. of Att'y Gen. at 4 n.2. At oral argument, the AGO added that, in some instances, it also wishes to disclose phone numbers and mortgage interest rates. The AGO's arguments raise two questions: What information here constitutes nonpublic personal information? And does the GLBA or the FTC rule prohibit redactions or repackaging to yield solely public information? 1. What information here constitutes nonpublic personal information? The GLBA and the FTC rule use a "relatively complex approach" to defining whether information is "nonpublic personal inf`ormation" or not. Privacy of Consumer Financial Information, 65 Fed. Reg. 33646, 33659 (May 24, 2000). There are three definitional filters through which the information must pass: (1) "personally identifiable financial informat.ion," 16 C.F.R. (2) "publicly available information," 16 C.F.R. and (3) "list, description, or other grouping of consumers," 16 C.F.R. a. Any personally identyiablejinancial information? The first meaning of "'nonpublic personal information"' is "personally identifiable financial inf`ormation." 15 U.S.C. 16 C.F.R. "Personally identifiable financial information" means "ar1y -10- Ameriquest Mortgage Co. v. Wash. State Ofice ofthe Atty Gen., No. 82690-1 information," in the context of the provision of a financial product or service, that (1) a consumer gives to a financial institution, (2) is about a consumer's transaction, or (3) a financial institution obtains from a constuner. 16 C.F.R. see also 15 U.S.C. The FTC rule provides relevant examples of information that meets this definition. Meeting the defmition are "[i]nformation a consumer provides to you on an application to obtain a 1oan," 16 C.F.R. "[t]he fact that an individual is or has been one of your customers or has obtained a financial product or service from [a financial institution]," 16 C.F.R. and "[a]ny information about [a financial institution's] consumer if it is disclosed in a manner that indicates that the individual is or has been [the financial institution's] consumer," 16 C.F.R. See 16 C.F.R. 313.3(h) (defining Not meeting the definition of "[p]ersonally identifiable financial information" is "[i]nformation that does not identify a consumer, such as aggregate information or blind data that does not contain personal identifiers such as account numbers, names, or 16 C.F.R. In the circumstances of this case, names, addresses, and phone numbers meet the definition of "persona1ly identifiable financial information." Not only are these bits of inf`or1nation personal identifiers, but also their disclosure by the AGO would reveal the fact that the individual is or has been Ameriquest's customer. See - I Ameriquest Mortgage C0. v. Wash. State Ofice ofthe Attjz Gen., No. 82690-1 16 C.F.R. As noted above, the mere existence of the customer relationship is personally identifiable fmancial infomation. 16 C.F.R. Only blind data or information stripped of personal identifiers are not protected infomation. 16 C.F.R. Notably, the definition of` "[p]ersonally identifiable financial information" relates to "infomation," and not to the vessel of the infomation (for example, a document or an e-mail). 16 C.F.R. Therefore, any infomation meeting the definition of identifiable financial information" is subject to the GLBA and the FTC rule, regardless of whether the infomation I appears in loan files, e-mails, or the AGO's internal work product. Id. If the AGO 1 took protected infomation h?om a loan file and reproduced it elsewhere a 1 memorandmn listing the names of the consmners), the infomation does not lose its i status as personally identifiable financial infomation. i Next, the infomation at issue must be filtered through the definition of I "[p]ublicly available information? 16 C.F.R. I b. Any publicly available information? I The AGO's primary argument is that it seeks to disclose only publicly I available infomation. Any information that qualifies as publicly available infomation is exempted from the definition of "'nonpub1ic personal infomation,'" even if the infommation would otherwise meet the definition of _"pers0na1ly I - 12 -- Ameriquest Mortgage Co. v. Wash. State Ofice ofthe Attfv Gen., No. 82690-1 identifiable fmancial information." 15 U.S.C. 16 C.F.R. 3 (2), The term "[p]ublicly available irformatiorz" is defined as "any infomation that you have a reasonable basis to believe is lawfully made available to the general public from: Federal, State, or local government records; (ii) Widely distributed media; or Disclosures to the general public that are required to be made by Federal, State, or local law.? 16 C.F.R. (emphasis added).7 And "widely distributed media includes information from a telephone book . . . or a [website] that is available to the general public on an unrestricted basis." 16 C.F.R. Because much of the information here is available through the telephone book, web sites, and recorded mortgage filings, the AGO argues that the names and addresses culled from the disputed records, as well as phone numbers and mortgage interest rates in some cases, meet the definition of "publicly available information? This information would therefore be exempted from the definition of "nonpublic personal information," and the federal restrictions would not apply. We reject the AGO's position. The key is the FTC rule's use of the word "you" in the definitions of "[p]ublicly available information" and "[r]easonable basis." 16 C.F.R. (2). The term means "each 'financial institution' . . . over 7The GLBA does not offer its own definition, leaving it to agency rule making to define the term. See` 15 U.S.C. -13- Ameriquest Mortgage C0. v. Wash. State Ojfice ofthe Atty Gen., No. 82690-1 which the has enforcement jurisdiction pursuant to [the 16 C.F.R. This definition expressly "excludes any 'other person,"' tal, which, in tum, is defined as "third parties that are not financial institutions, but that receive nonpublic personal information from financial institutions with whom they are not af`filiated," 16 C.F.R. 3 Ameriquest is a "you," and the AGO is an "other pers0n." Only a "you"--a financial institution--can form the reasonable basis to believe infomation is publicly available. For example, as to na1nes, addresses, and loan information, the FTC rule says, "You have a reasonable basis to believe that mortgage information is lawfully made available to the general public if you have determined that the information is of the type included on the public record in the jurisdiction where the mortgage would be recorded." 16 C.F.R. (emphasis added). An "other person" like the AGO may not make this determination. As to phone numbers, the I FTC rule says, "You have a reasonable basis to believe that an individual's telephone number is lawfully made available to the general public if you have located the telephone number in the telephone book or the consumer has informed you that the telephone ntunber is not unlisted." 16 C.F.R. Simply put, only a financial institution can form the reasonable basis necessary to think that information is publicly available. .14- Amerfquest Mortgage C0. v. Wash. State Ofice ofthe Attfy Gen., No. 82690-1 The FTC's Final Rule statement does not say why it chose this definitional route. See Privacy of Consumer Financial Information, 65 Fed. Reg. 33646. But its choice is consistent with the overall thrust of the federal regulations. The financial institution is allowed to scrutinize a c0nsume1?'s information for what is publicly available and what is not because the fmancial institution already has the infomation, the consumer has consented to the situation, and the financial institution has a business incentive to respect its customers and be careful with their privacy. However, the vetting itself is an intrusion into a cons1uner's privacy. If a third pa1?ty holding protected information were allowed to see whether some of the infomation is publicly available, the third party would have greater reason to rummage through the consumer's information. This would conflict with the carefully drawn limits on a third pa1?ty's use and redisclosure of the protected information. See 15 U.S.C. 6802(c); 16 C.F.R. Additionally, because a different set of laws might apply to third parties, more infomation could be inadvertently treated as public. For instance, under the AGO's interpretation, all of the information it controls would be publicly available because PRA requests are "[d]isc1osures to the general public that are required to be made by Federal, State, or local law." 16 C.F.R. In sum, any infomation that meets the definition of "nonpublic personal infomati0n" cannot be recast as exempt publicly available infomation by the - 15 - Ameriquest Mortgage Co. v. Wash. State Ojice ofthe Attfy Gen., No. 82690-1 AGO. Only Ameriquest can fom the reasonable basis to color the information that way, and nothing suggests that Ameriquest has taken the necessary steps. c. Any list or grouping of consumers constituting nonpublic personal information? Infomation included in a "list, description, or other grouping of consumers" is automatically protected if it is- "derived; using any nonpublic personal infomation." 15 U.S.C. 6809(4)(C)(i); 16 C.F.R. Even if some publicly available information is included in such a grouping, all of the infomation in the list or grouping is deemed nonpublic personal information. 15 U.S.C. 16 C.F.R. Here, any list, description, or other grouping included in the records at issue are nonpublic personal infomation, because the AGO necessarily must derive the grouping using personally financial infomation, such as the fact that the consumer is or was an Ameriquest customer. To summarize conclusions thus far, the only-disputed infomation that not subject to the federal nondisclosure rules is "[i]nfomation that does not identity a consmner, such as aggregate infomation or blind data that does not contain personal such as account numbers, names, or addresses." 16 C.F.R. .16- I Ameriquest Mortgage Co. v. Wash. State Ofice ofthe Atty Gen., No. 82690-1 2. Does the GLBA or the FTC rule prohibit redactions or repackaging to . yield solely public information? The FTC rule restricts what a nonafiiliated third party may do with the protected infomation that it receives. The third party may "disclose and use" the protected infomation only "in the ordinary course of business to carry out the activity covered by the exception under which it received the infomation." 16 C.F.R. This use restriction recognizes that "consumers have a privacy interest in the initial use of their nonpublic personal infomation for the creation of aggregate data." Individual Reference Servs. Group, Inc. v. F. TC. 145 F. Supp. 2d 6, 38 (D.D.C. 2001). Here, the exception under which the AGO received the infomation from Ameriquest was the exception for a government investigation. 15 U.S.C. 6802(e)(8); 16 C.F.R. Public disclosures not an ordinary part of an investigation. Thus, the AGO is not permitted to use any nonpublic personal infomation for purposes of public disclosure. We think "use" includes redactions and repackaging of information because the AGO is required to leave the infomation--and the consumer's privacy unless the AGO needs to use it in the ordinary course of business to carry out the investigation. Chao v. Comrnunity Trust Co., 474 F.3d 75 (3d Cir. 2007), which contemplated redactions under the GLBA, is not on point. The Third Circuit -17- Ameriquest Mortgage C0. v. Wash. State Qfice ofthe Attfy Gen., No. 82690-1 reasoned that disclosures were permitted under the GLBA after redactions "because there would not be a release of personal financial infomation? Id at 87 n.6. However, the issue was a financial institution's disclosure of infomation to a nonaffiliated third party, not the use or redisclosure of that information by the third partyhave discussed, the "use" restriction of 16 C.F.R. 313.11(c) imposes tight restrictions on what third parties can do with the protected information they receive. The financial institution might use protected information for redaction and repackaging, but the thirdparty may not. To be sure, blind data and identifier-free infomation may be disclosed because it is not protected infomation. 16 C.F.R. If some of the records here already contain infomation in that pemissible fom (for example, a memorandum analyzing the interest rates given to certain income groups, with no names or addresses included), then the AGO may disclose it, because no additional use of protected infomation is necessary. Thus, the AGO may disclose blind data and identifier--&ee infomation if it has already been created. C. Do any exceptions to the GLBA or the FTC rule apply'? The AGO's fallback position is the exceptions enumerated in 6802(e) and 16 C.F.R. 313.15. Because the language of the GLBA and the FTC differ somewhat, we address each in tum. - - Ameriquest Mortgage Co. v. Wash. State Office ofthe Attjr Gen., No. 82690-1 1. The GLBA exceptions The GLBA prohibits nonaftiliated third parties from redisclosing nonpublic personal information "[e]xcept as otherwise provided." 15 U.S.C. 6802(c). Relying on this language, the AGO argues that it can disclose nonpublic personal infomation pursuant to the GLBA exception for disclosures necessary "to comply with Federal, State, or local laws." 15 U.S.C. 6802(e)(8), Because the PRA is a "State . . . law," the AGO claims it may disclose "t0 comply." Id. We disagree. The AGO cites the statute out of context. To Lmderstand the meaning of the exception in 6802(e)(8), one has to read it together with the introduction to subsection this way: "Subsections and of this section shall not prohibit the disclosure of nonpublic personal information . . . to comply with Federal, State, or local laws." 15 U.S.C. 6802(e). And subsections and in tum, are the notice and opt-out requirements imposed on financial institutions. 15 U.S.C. Therefore, the exceptions enumerated in 6802(e) are not general exceptions available to whoever holds protected information. Rather, the exceptions describe the limited circumstances under which a financial institution may bypass the notice and opt-out provisions. Thus, the 6802(e) exceptions do not give nonaftiliated third parties an unrestricted escape hatch hom the nondisclosure rule of 6802(c). -19. Ameriquest Mortgage Co. v. Wash. State Ojlice ofthe Atty Gen., No. 82690-1 The AGO may invoke an exception under 6802(e) only if Ameriquest could. Section 6802(c) allows the AGO's disclosure if "such disclosure would be- lawful if made directly to such other person by the financial institution." By the terms of 6802(e), the lawfulness ofthe disclosure is measured as if the fmancial institution were standing _in the shoes of the nonaffiliated party. See Marks v. Global Mortgage Group, Inc., 218 F.R-D. 492, 496 (S.D. W. Va. 2003) ("The language in 6802(e)(8) permitting disclosure 'to comply with Federal, State, or local laws, rules, and other applicable legal requirements' refers to the numerous federal and state statutes, rules, and legal requirements that regulate the financial Arneriquest could not disclose directly to Huelsman in order "to comply with Federal, State, or local laws," 6802(e), because the PRA applies only to state agencies, RCW .070(l). Thus, the AGO may not invoke this exception.8 The AGO could plausibly argue that Ameriquest, and therefore it, could disclose to Huelsman after obtaining the consmners' prior consent. 15 U.S.C. 6802(e)(2). However, the FTC rule forecloses it. ?The Court of Appeals held that the exception for disclosures "to respond to judicial process," 6802(e)(8), does not apply. Ameriquest, 148 Wn. App. at 165. The AGO does not challenge this holding, and we agree with the Cotut of Appeals that a public records request is not a "judicia1 process." 15 U.S.C. 6802(e)(8). -20- . Ameriquest Mortgage Co. v. Wash. State Ofice ofthe Attjz Gen., No. 82690-1 2. The FTC rule exceptions The AGO argues that the FTC rule broadens its access to the 6802(e) exceptions. The AGO is incorrect; the FTC rule actually limits its access. The FTC's Final Rule says the "third party may also disclose and use the information pursuant to one of the section 6802(e))] exceptions as noted in the ru!e." Privacy of Consumer Financial Information, 65 Fed. Reg. at 33667 (emphasis added). The 6802(e) exceptions are contained in 16 C.F.R. 313.15, including the familiar exceptions of prior consent, 16 C.F.R. and comply with Federal, State, or local laws," 16 C.F.R. However, as with the GLBA, these are exceptions to the financial institution's duty to give notice and an opportunity to opt out, 16 C.F.R. and so the third party may invoke them only if the fmancial institution could. The FTC rule includes an additional limitation on a third party's access to the exceptions. It provides that, when a third party receives the protected infomation under an exception, the third party may subsequently invoke an exception to redisclose the information only "in the ordinary course of business to I carry out the activity covered by the exception under which it received the information." 16 C.F.R. (This is the same part of the rule that limits a third pa1?ty's use of protected information, as discussed above.) Thus, not only must the redisclosure be adjudged as if the financial institution were making -21- Ameriquest Mortgage Co. v. Wash. State Ojfice ofthe Attjz Gen., No. 82690-1 it, but also the redisclosure is lawful only if done in the ordinary course of the third party's reason for possessing the infomation. Here, the PRA does not apply to Ameriquest, and so the AGO may not disclose pursuant to 16 C.F.R. Further, although Ameriquest could disclose with the consu1ners' consent, the AGO may not, because doing so would not be in the ordinary course of the AGO's investigation. Thus, these exceptions to the FTC rule do not apply here. D. Do the GLBA and the FTC rule preempt the By force of the supremacy clause of the United States Constitution, federal law can preempt state law. Wash. State Physicians Ins. Exch. Ass 'n v. isons Corp., 122 Wn.2d 299, 326, 858 P.2d 1054 (1993). Preemption principles apply equally when the federal law is a regulation promulgated by a federal agency rather than a statute passed by Congress. Fid. Fed. Sav. Loan Ass 'n v. de la Cuesta, i 458 U.S. 141, 153-54, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982). Ameriquest argues that the PRA's disclosme rules are preempted so completely that none of the information that Ameriquest gave to the AGO may be disclosed. Ameriquest is incorrect. Because there is no inconsistency with these federal laws and the PRA, there is no preemption. Both the GLBA and the FTC rule provide that they are to be construed as "superseding, altering, or affecting" a state law "on1y to the extent of .22- Amertquest Mortgage Co. v. Wash. State Qffice ofthe Attjz Gen., No. 82690-1 [an] inconsistency? 15 U.S.C. 6807(a); 16 C.F.R. Although the PRA requires state agencies to "make available for public inspection and copying all public records," the PRA provides an exemption to this disclosure requirement if there is any "other statute which exempts or prohibits disclosure of specific information or records." RCW This other statute exemption avoids any inconsistency and allows the federal regulation's privacy protections to supplement the PRA's exemptions. We have held numerous other state statutes' disclosure prohibitions are thus incorporated into the PRA. See Hangartner v. City of Seattle, 151 Wn.2d 439, 453, 90 P.3d 26 (2004) (RCW Progressive Animal Webfare Society v. Univ. of Wash., 125 Wn.2d 243, 261-63, 884 P.2d 592 (1994) (Ch. 19.108 RCW 4.24.580). We see no reason why federal law should be treated differently. We conclude that the GLBA (together with the FTC rule enforcing it) is an "other statute." RCW We recognize the PRA's rule of construction, which dictates that the event of conflict between the provisions of [the and any other act, the provisions of this chapter shall govem." RCW 42.56.030. The only potential source of conflict that would call for a preemption analysis is the PRA's redaction requirement. The PRA requires redactions and disclosure of the rest of the record, to the extent that exempted "information . . . can be deleted hom the specific records sought." RCW 42.56.210. We see no conflict. While the GLBA and the . - 23 - Ameriquest Mortgage Co. v. Wash. State Q)_7ice ofthe Attjr Gen., N0. 82690-1 FTC prohibit the AGO's redactions or repackaging of information, the PRA's redaction requirement applies only where "infomation . . . can be deleted." Id. Further, the PRA's "other statute" exemption allows for a separate statute to preclude disclosure of "specific infomation" or entire "rec0rds." RCW Thus, the PRA makes room for an "other statute" that expressly prohibits redactions or disclosures of entire records. As we have discussed, however, the GLBA and the FTC prohibit specific infomation, not entire records. These federal regulations are unconcerned with the containers in which the infomation is fotmd. Thus, to the extent that a record - contains unprotected information, the disclosure of which would not violate the GLBA or the FTC rule, the PRA is not preempted in requiring the record's disclosure. HI. CONCLUSION For the foregoing reasons, we affim on different grounds the Court of i Appeals' holding that federal privacy laws apply to the disputed infomation in this case. To summarize our conclusions, the restrictions of the GLBA and the FTC apply to the AGO's disclosures of` nonpublic personal infomation to Huelsman. Any infomation meeting the definition of "persona1ly identifiable fmancial I infomation" is nonpublic personal infomation that may not be disclosed, regardless of whether the infomation appears in loan files, e--mails, or the AGO's .24- Ameriquest Mortgage C0. v. Wash. State Ofice ofthe Atty Gen., No. 82690-1 internal work product. Under the circumstances of this case, names, addresses, and phone numbers meet the definition of "personally identifiable financial infor1nation." Not only are these bits of information personal identifiers, but also their disclosure by the AGO would impennissibly reveal the fact that the individual is or has been Ameriquest's customer. Any information that meets the definition of "nonpublic personal information" cannot be recast as publicly available infomation by the AGO. The only disputed infor1nation that is not subject to the federal nondisclosure rule is "[i]nformation that does not identify a consumer, such as aggregate information or blind data that does not contain personal identifiers such as account numbers, names, or addresses." 16 C.F.R. However, the GLBA and the FTC do not permit the AGO to newly redact or repackage the information in its possession to yield the blind data, aggregate information, and personal-identifier--ii?ee information that can be treated as public information. Thus, the AGO may disclose blind data and identifier-Hee information only if it has already been created. The nondisclosure rules of the GLBA and the FTC rule are incorporated as an exemption to the PRA through RCW -25- Ameriquest Mortgage C0. v. Wash. State Ojfice 0f the Attfy Gen., N0. 82690-1 ibm mm . WE CONCUR: i .. 26 - I SF-00125 PRR-2011-00450 I El EXPEDITE I I. Hearing is Set 2 Hearing is Not Set SEP .. 2 2011 3 Date: September 2, 2011 - . . . PER OR COURT nm. 9.00 6.111. S?lamg 1 GOULD . 4 Judge/Calendar: Honorable Paula Casg; THURSTON COUNTY CLERK 5 . 6 . 7 SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY 8 AMERIQUEST MORTGAGE COMPANY, a) Delaware corporation, 9 NO. 07-2-00506-1 Plaintiff`, 10 . ORDER ON MOTIONS DECIDED ON V. AUGUST 12, 2011 1 I OFFICE OF ATTORNEY GENERAL) 12 OF . 13 Defendant. I 14 15 THIS MATTER came before this Court on the following Motions: . 16 Motions re: Gramm-Leach-Blilgy Act 17 1. Defendant Attomey General's Brief Regarding Production of Stated 18 Income and Blackstone Email Messages; 19 2. P1aintifi:`Ameriquest Mortgage Company's ("Ameriquest") Brief In Support of 20 Motion For Enforcement of Consumer Privacy Protections Under the Gramm--Leach-Bliley 21 Act; . 22 Motion re: Confidentiality of Document Production 23 3. Ameriquest's Brief and Motion for Enforcement of Confidentiality of Its 24 Document Production; and 25 26 ORDER ON MOTIONS DECIDED ON AUGUST 12, 2011 I LANE pgwgu, pc 111 MARKET srtusrsr NB, sum; 360 OLYMPIA, wa 98501 (360) 754-6001 mx; (360) 754-1605 PRR-2011-00450 . 1 Motion re: Setting Briefing on Discoveg 2 4. Ameriquest's Motion for Setting Briefing Schedule On Discovery For 3 Arbitrary and Capricious Claims. 4 THE COURT HAVING CONSIDERED THE RECORDS AND FILES HEREIN, INCLUDING: 6 5. Defendant AGO's Brief Regarding Production of Stated Income and 7 Blackstone Email Messages; . 8 6. Declaration of Shannon E. Smith In Support of Defendant's AGO's Brief 9 Regarding Production of Stated Income and Blackstone Email Messages 10 7. Plaintiff Ameriquest's Brief In Support of Motion For Enforcement of 11 Consumer Privacy Protections Under the Gramm-Leach-Bliley Act; 12 8. Declaration of Diane Tiberend In Support of Plaintiff Ameriquest's Brief In 13 Support of Motion for Enforcement of Consumer Privacy Protections Under the Gramm- 14 Leach-Bliley Act; 15 9.. Plaintiff Ameriquest's Response Brief Opposing the AGO's Production of 16 Stated Income and Blackstone E-Mail Messages; 17 10. Intervenor Melissa A. Huelsman's ("Intervenor") Response to ATG's Brief -18 and Reply to P1aintiff's Response to Opposing ATG's Production of Stated Income and 19 Blackstone Email Messages; I 20 11. Plaintiff Ameriquest's Reply to Intervenor's Opposition to Motion for 21 Enforcement of Consumer Privacy Protections Under the Gramm--Leach-Bliley Act 22 12. Plaintiff Ameriquest's Brief and Motion for Enforcement of Confidentiality of 23 Its Document Production; 24 13. Declaration of Diane Tiberend In Support of Plaintiff Ameriquest's Brief and 25 Motion for Enforcement of Confidentiality of Its Document Production; 26 ORDER ON MOTIONS DECIDED ON AUGUST 12, 2011 2 LANE PQWELL pc 111 sumzaso PRR-2011-00450 1 14. Defendant AGO's Response to Ameriquest's Opening Brief and Motion for 2 Enforcement of Confidentiality of Its Document Production; 3 15. Plaintiff Ameriquest's Reply to AGO's Response to its Motion for 4 Enforcement of Confidentiality of its Document Production; 5 16. Plaintiff` Ameriquest's Motion for Setting Briefing Schedule On Discovery For 6 Arbitrary and Capricious Claims; 7 17. Defendant AGO's Response to Ameriquest's Motion for Setting Briefing 8 Schedule on Discovery for Arbitrary and Capricious Claims; and 9 18. Plaintiff Ameriquest's Reply to AGO's Response _to Motion for Setting 10 Briefing Schedule for Arbitrary and Capricious Claims. 11 19. The Blackstone and Stated Income email messages presented to the Court for 12 in camera review. 13 THE COIJRT MAKES THE FOLLOWING FINDINGS AND CONCLUSIONS: 14 Motions re: Gramm-Leach-Blilgy Act 15 1. The Washington Supreme Court issued a decision with respect to nonpublic 16 personal information about consumers in the records that are held by the Attomey General's 17 OHice. Ameriquest Mortgage Company v. Washington State Ojfice ofthe Atty. General, 170 18 Wn.2d 418 (2010). - 19 2. In its decision the Supreme Court indicated that it accepted review on the issue 20 of whether federal law preempts or precludes disclosure of information in loan files held by 21 the Attomey General. The Supreme Court's language was broader than addressing only loan . 22 files, but finds that the Supreme Court's analysis seemed most concemed about the protection 23 of constuner information that was submitted to obtain loans. The Supreme Court's decision to 24 be very clear that anything personal to a consumer that was submitted in a loan application is 25 nonpublic personal information about consumers that may not be disclosed. 26 - ORDER ON MOTIONS DECIDED ON AUGUST 12, 2011 3 LANE POWELL pg I . (seo) 754-6001 mx; (seo) 754-1605 PRR-2011-00450 1 3. The Supreme Court used the word "e-mail" saying that the personal 2 information that is contained in e-mails or_ the Attomey General's intemal work product is 3 also subject to protection. So those personal identifiers in e-mails or other work product of 4 the Attomey General cannot be disclosed. 5 4. However, the_ Supreme Court was not clear in its decision that the e-mails 6 themselves cannot be disclosed. In the Supreme Court opinion, there is about nothing in the 7 individual consumer's loan application or loan iile that could be disclosed. The Supreme . 8 Cou1t's opinion falls short of saying there is nothing in the e-mails or other information in the 9 possession of the Attomey General that could not be disclosed if the personal identifiers were 10 redacted. ll 5. The Supreme Court did not have the e-mails in front of it that were submitted 12 to this Court for in camera review and are in dispute. It inconceivable that, if the Supreme 13 Court had the e-mail examples and redactions that were submitted to this Court for in camera 14 review, the Supreme Court would intend to extend their decision to prohibit disclosure of the 15 e-mails themselves with redaction. . 16 6. The e-mails which this Court reviewed were between Ameriquest employees. 17 The e-mails appear to have been generated during the processing of the consumer loans and 18 each e-mail contains little personal information. With redactions of the nonpublic personal 19 information, the e-mails are exactly the sort of information that must be disclosed under the 20 Public Records Act of Washington. Accordingly, the Blackstone and Stated Income E-mails 21 are not protected and may be redacted and producedORDER ON MOTIONS DECIDED ON AUGUST 12, 2011 4 LANE PQWELL pc iu SF 0129 PRR-2011-00450 - 1 Motion re: Confidentiality of Document Production. 2 7. The Public Records Act must be interpreted in favor of disclosure and 3 exemptions must be narrowly construed. The Washington Consumer Protection Act 4 specifically exempts from public disclosure records produced in response to a civil 5 investigative demand. The request in this case was for voluntary cooperation. The form of 6 the request, the deadlines for the request were in the nature of what would be included in a 7 civil investigative demand, but the letter itself was clear that this was not a civil investigative 8 demand. The exemption should not be construed to include the voluntary production. 9 8. Washington courts are to construe our laws in the same marmer in which . 10 federal courts construe laws withrespect to these exemptions from disclosure. The cases ll reviewed where the voluntary production was entitled to exemption from disclosure in federal 12 cases, it was because of a- statute that specifically protected the voluntary production from 13 disclosure. Washington does not have that kind of a statute. And so the interpretation of 14 those federal laws does not apply to this case. - I 15 9. The request for production of records of the plaintiff was not a civil 16 investigative demand and does not exempt the records from disclosure. 17 BASED ON THE ABOVE FINDINGS, THE COURT HEREBY ORDERS: 18 1. . Ameriquest's Motion For Enforcement of Consumer Privacy Protections 19 Under the Gramm-Leach-Bliley Act is Denied. The AGO may redact nonpublic personal I 20 information about consumers from the Blackstone and Stated Income E-mails and may 21 disclose them consistent with the further provisions of this order. . 22 2. Ameriquest's Motion for Enforcement of the Confidentiality of Its Document 23 Production is Denied. The Blackstone and Stated Income E-mails are not exempt from public 24 disclosure pursuant to RCW 25 3. The Blackstone and Stated Income E-mails shall be disclosed consistent with _26 this Order. ORDER ON MOT10Ns - DECIDED ON AUGUST 12, 2011 5 ul 360 a Sumo PRR-2011-00450 1 4. This Order shall be stayed for a period of sixty (60) days from the date of its 2 entry to provide Ameriquest the opportunity to obtain a stay of disclosure pending resolution 3 of appeal. 4 . - 5 DATED this day of September, 2011. - 6 PAULA CASEY 7 SUPERIOR COURT JUDGE 8 Presented by: Agreed to an Approved for Entry: 9 LANE POWELL PC ROBERT M. MCKENNA 10 Attomey General 11 dh, 12 Erik D. Price, WSBA N0. 23404 SHANNON E. WSBA N0. 19077 13 Attomey for Plaintiff Assistant Attomey General Ameriquest Mortgage Company Washington Office of the Attomey General 14 111 Market Street, Suite 360 Consumer Protection Division 15 Olympia, WA 98501-1070 800 5th Avenue, Suite 2000, (360) 754-6001 Seattle, WA 98104-3188 16 (206) 389-3996 17 I 18 I 19 . Melissa A. Huelsman Intervenor 20 Law Offices of Melissa A. Huelsman 705 Second Avenue, Suite 501 21 Seattle, WA 98104 (206) 447-0103 - 22 23 24 25 @26 ORDER ON MOTIONS DECIDED ON AUGUST 12, 2011 6 LANE pgwgu, pc otmrm, wa 98501 (360) 754-6001 mx; (360) 754-1605 PRR-2011-00450 . 054*18/2001* 18:34 8801541805 Lanh Pc - - - - . SUPERIOR COURT - - IHURSTON . I IS PH 3=I\o . I I BETTY J. SOULD. CLERK TN0. 07-2-00506SMDTIUNHOR 14 WASHINGTON - INPRR-2011-00450 - I 18:34 FAX 8EOT541805 I Lane -12 _10k\\PRR-2011-00450 osnarzoov 11::114 Fax 1as0?s41s?1s Lana Putsli .Th?C?u1td??s 'iuch iswcwith `l-I6Amzh-r. A- frve Wg - I B) |?I3l-3317 - QMZ 1 1 PRR-2011-00450 .os.r1s;20or Fax ssorsusos Lane P0l?gmxA9o?dt?mdAgu?v?dF?rl?anigyHUBY (2519593-5057 - .. - 23 . . . . WSBAH0935 . . 2PRR-2011-00450 Ann 1 1 EXPEDITE gpg-3 2' 2010 I une: a.m. .. 3 Judge Paula Casey wu ?a?11r*1?STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT 9 ARTHUR WEST, NO. 10-2-00063-9 111 Plaintiff, 11 V. FINDINGS OF FACT, 12 CONCLUSIONS OF LAW, ORDER CHRISTINE GREGOIRE, REGARDING COSTS AND 13 GOVERNOR OF THE STATE OF PENALTIES AND FINAL WASHINGTON, STATE OF JUDGMENT 14 - 1 5 Defendants. 16 - F1ND1N cT 11 1. The subject matter of this case is a sinymdocument withheld by the Govemor's 18 Office in response to requests for public records made by Plaintiff, Arthur West, on 19 20 November 16, 2009 and December 1, 2009. 21 2. In compliance with RCW 42.56.5 the G0vernor's Office has designated a Public . I . 22 Records Ofjcer, Melynda- Campbell r??G I a 24 o_n ub oao?FINDINGS OF FACT, CONCLUSIONS 1 ATTORNEY OF OF LAW AND ORDER Fox SF-00136 1125 DISCLOSURE onympia, WA 98504-0100 (360) 753-6200 I 3. On November 16, 2009 Plaintif delivered to the Govemor's OtHce a{r:eLmfrandum 2 addressed to STATE GOVERNOR CHRISTINE GREGOIRIQ AND WSAC 3 DIRECTOR ERIC The memorandum began with a line identifying its subject 4 ATTENDANCE AT SECRET SHADOW GOVERNMENT EVENT, AKA (W SAC . 2009 ANNUAL request for records appears in the last 7 paragraph of this 5 paragraph memorandum. 7lZl gAfYlL11j~. 4. The Plaintiffs orandum was routed to the Govemor's Constituent Services 9 Unit which receives and processes most incoming mail directed to the Govemor's Office. 10 5. On December 1, 2009, eight (8) business days (14 calendar days) alter delivery of 11 the memorandum to the Govemor's Office, Plaintiff sent an email to the Communications 1; Director for the Office of Financial Management (who was then on temporary assignm to 14 the Govemor's Office), a copy to Martin C. Loesch, Director of External Affairs and 15 Senior Counsel to Governor Gregoire, stating that he had submitted a public records request to 16 the Governor's_ Office on November 14, 2009, but had not received any response. 17 - 5. Mr. West's December 1, 2009, email also asked for additional public records, 18 including an August 2, 2006, proclamation of the Govemor relating to WSAC, and speech 19 by the Govemor to WASC &om 2005 to the present. - 6. Both Mr. Kuper and Mr. Loesch immediately forwarded this email to Melynda 22 Campbell, the designated Public Records Ofhcer for the Govemor's Office. 23 7. Ms. Campbell immediately contacted the Govemor's Constituent Services Unit and 24 asked it to check whether it had Mr. West's request. Within the hour, CSU responded to Ms. 25 26 2 DISCLOSURE PRR-2011-00450 oiympgawrgas-g%01w Campbell sending a copy of the memorandum to her and explaining that it had not noted the 2 public records request at the bottom of the document. 3 8. On that same afternoon, December 1, 2009, Ms. Campbell notified staff of the 4 Governor's Office of Mr. West's public records request, and directed staff to advise her of . documents responsive to Mr. West's request. 7 9. Also on that same aftemoon, December 1, 2009, Ms. Campbell sent an email and letter to Mr. West, letting him know that his memorandum dated November 14, 2009, hand 9 delivered to the Governor's Office on Nov ber 16, 2009, had not initially be identiied as a 10 public records request. Ms. Campbell also let Mr. West know that she would provide an 11 estimate of the time required to respond to his public records request within two days, and 1; apologized for the delay. 14 10. Mr. West responded the next day, stating that he had a deadline of December 7th in 15 a case concerning the status of WSAC, for filing infonnation about WSAC, and that he was 16 hoping to receive the proclamation that he had requested and whatever other information was 17 readily available by that date. In response, Ms. Campbell then sent another email to oflice 18 staff infonning them of Mr. West's desire for an expedited response. 19 11. The following day, December 3, 2009, Ms. Campbell sent 57 pages of responsive documents to Mr. West by email. This included the proclamation by the Governor that Mr. 22 West had specincally asked to receive by December 7th. Although providing the documents 23 involved costs to the Office of the Governor, Mr. West was not asked to pay for these copies. 24 Ms. Campbe1l's letter advised Mr. that search were still ongoing, and that she would let 25 him know if additional documents were located. I 26 FINDINGS or CONCLUSIONS 3 GENEEAL 0E or LAW AND 011012.11 Fon Samm SE DISCLOSURE PRR-2011-00450 1 12. On December 17, 2009, Ms. Campbell provided an additional 299 pages of 2 documents responsive to Mr. West's request and an exemption log. One 3--page document was 3 withheld. Plaintiff was not asked to pay the costs of producing these records. This completed 4 the response of the Govemor's Office to Plaintifs requests. . 13. The privilege log identified the document, 71-73"; its date "April 8, 2009;" 7 the author, "Kathleen Drew"; the recipient "Govemor Gregoire"; the type of docum t, "Briefing Document"; and exemption, "Executive Privilege." 9 14. On January 1 1, 2010, Plaintiff filed this action under the Public Records Act, RCW 10 42.56, claiming that the above-described assertion of executive privilege by the Governor's 11 Office violates the Public Records Act. 1; 15. At Plaintiffs request, on January ll, 2010, the Court issued an exparte Order To 14 Show Cause to the Office of the Governor. The Order directed the Governor's Office to show 15 cause on January 22, 2010, why it should not be found in violation of the Public Records Act 16 based upon the above-described assertion of executive privilege. Upon Plaintiff" request, the 17 show cause hearing on January 22, 2010 was continued to February 5, 2010. Upon Plaintiffs 18 request, the show cause hearing on February 5, 2010, was again continued to February 12, 19 2010, on Plaintiffs waiver of any PRA penalti during this period. 22) 16. The Gove1nor's Office briefed the constitutional executive privilege of the state's 22 chief executive asserted by the Govemor's Office, submitted supporting declarations, and 23 presented argument on the Order to Show Cause. Plaintif`f likewise briefed the matter, 24 submitted supporting materials, and presented argument opposing the privilege. 25 26 (saws:-szno 1 17. On March 12, 2010, the Court entered Findings of Fact, Conclusions of Law and 2 Order Compelling Disclosure, requiring that the briefing document be produced to Plaintifti 3 The Court concluded that "[t]he Document at issue contains a recitation of what positions of 4 different entities are and what proposed legislation is before the Legislature, and do not . contain advice to the Governor." The Court concluded that "as such [the Document] would not 7 be subject to a claim of executive privilege if one were found to exist", and further concluded that the court "'needs not address the issue of whether an executive privilege exists in the State 9 ofWashington." 10 18. On the same date, March 12, 2010, counsel representing the Governor's Office 11 provided a copy of the brieing memorandum to Plaintiff - 19. 'I`he Governor's Office did not respond to Plaintiffs November blic 14 records request within the initial 5 day period set forth in RCW 42.56.520. 15 . While not excusable, the form of Mr. t's request was unclear 16 ly would contribute to this error. The public records officer for the _Governor's 17 QI systems were in place to track and respond to requests for records. 18 . 20. Subsequent to December 1, 2009, when the or's Office first recognized that 19 Mr. West had made a public records request, it expeditiously to respond is to this request and completed its response in a reasonably timely mannerFINDINGS or mor, CONCLUSIONS ueowsrezoo 1 CONCLUSIONS OF LAW 2 1. The Govemor's Office acted in good faith throughout this case in responding to Plaintiffs 3 public records requests and in asserting executive privilege. 4 5 2. The Court has considered the entire penalty range ofthe Public Records Act, and all of the 6 aggravating and mitigating identified in Yousoufian v. Ojice of Ron Sims, No. 7 80081--2,filedMarch25, 01 fw wif Nam or rbu aqyr maq?idvvg F??rs? 8 3. An agency is afforded a reasonable time to respond to a public records request under 9 RCW 42.56.520. 10 4. Based on all of the relevant Yousoufian factors and the facts of this case, the appropriate 11 penalty period is 87 days, repr enting the period between Plaintiffs November 16, 2009 12 request, and March 12, 2010 when Plaintiff received the single record at issue in this case, 13 exclusive of 7 days during which plaintiff waived penalties to secure a second continuance 14 of the show cause proceeding, and exclusive of 22 days which represents a reasonable 15 period for the Governor's to respond to Plaintiffs public records requests in this A 16 4% 17 5. Based on all of the relevant Yousoufian factors and the facts of this case, is the 18 appropriate daily penalty. 'I`he Govemor's office exercised good faith throughgut this I d?ry 19 matter. The remaining Yousoujian factors also favor a penalty at th statu 20 MQA 21 6. Plaintiff is awarded his iiling fee and $200 in statutory costs. 22 23 7. Plaintiffs request for findings under CR 54(b) is denied. 24 25 26 FINDINGS or FACT, CONCLUSIONS 6 ATTORNEY GENEML 0; or LAW AND oanaa Fon SMO141 DISCLOSURE wg 1 ORDER AND FINAL JUDGMENT 2 Based upon the foregoing Findings of Fact and Conclusions of LawAND that Plaintiff is awarded penalties in the amount of and 4 frfn. M5 . costs in the amount of $43 . This ORDER AND JUDGMENT, together with the Court's 5 A March 12, 2010, Findings of Fact, Conclusions of Law and Order Compelling Disclosure 6 7 resolve this case in its entirety and constitute the final judgment of this Court. Done in Open Court this A day of April, 2010. 9 10 Judge aula Casey >e . 12 YL 13 Maureen Hart Solicitor General 14 Attomey for Defendants . FINDINGS OF FACT, CONCLUSIONS 7 o1amanA1. or WASHINGTON or LAW AND ommn Fon **25 SE DISCLOSURE PRR-2011-00450 oiympu, WA 98504-0100 - I . 3 A FILED . - THOMAS R. EALLOUIST . SPOKANE COUNTY CLERK - THE SUPERIOR COURT OF THE STATE OF WASHINGTON 8 IN AND FOR THE COUNTY OF SPOKANE SYED MJ. HASAN, NO. 08-2-00887-2 IO - Plaintiff] STIPULATION AND ORDER OF 1 1 DISMISSAL EASTERN WASHINGTON 13 UNIVERSITY, a Washington State public entity. . 14 . . DefendantHEREBY STIPULATED by and between the respective parties as provided in the attached settlement agreement and release that the above-entitled and numbered appeal shall be . I 7 . dismissed with prejudiceDATED this day of August, 2008DEBORAH K. DANNER - 22 _y for Plaintiff Assistant Attorney General . - ANO. 146lO WSBA N0. 20216 gule 9 camo . AND 1 GENERAL or ommk or msM1ssAL .- 456-3123 SF-00143 - PRR-201 1-00450 1 I . 2 Based upon the foregoing stipulation,_ it is hereby ORDERED, ADJUDGED AND 3 DECREED that the above-entitled and numbered case be dismissed, with prejudice. I 4 DATED this I day of August 2008. . 6 . I -1 JUDGE Monsmo i 8 Presented by: 9 ROBERT M. MCKENNA 12 DEBORAH K. DANNER . 13 Assistant Attomey General WSBA No. 20216 - . . 14 15 Approved as to form and content; I Notice of Presentation waivedFINER . A Plaintiff - STIPULATION AND 3 ATTORNEY GENERAL or WASHINGTON ORDER or DISMISSAL SF-00144 (509) 456-3123 PRR-201 1-00450 . SETTLEMENT AGREEMENT AND RELEASE - BETWEEN - - - - EASTERN WASHINGTON UNIVERSITY - . - - JAMEEL HASAN . FOR AND IN CONSHDERATION of the sum of `eleven thousand live hundred dollars Jarneel Hasan (aka: Syed M.J. Hasan) does hereby release and forever discharge . EASTERN WASHINGTON UNIVERSITY, the STATE OF WASHINGTON and its otiicers, - - agents, employees, agencies and departments from any and all existing and future claims, damages and causes of action of any nature whatsoever arising out of occurrences or events described in the lawsuit tiled against Eastern Washington University on February 22, 2008, in Spokane County Superior Court, under cause of action 2008-02-00887-2. . the undersigned claimant represents, warrants, and agrees that: . 1. This is a tinal, conclusive and complete settlement and release of all unknown and - unanticipated damages arising out of the aboveystated occurrence or event as well as those now known or disclosed. - 2. The undersigned claimant shall indemnify and save harml the parties herein` - released from all liens, loss, damage and expense of any kind or character arising out of the irnury, damage or loss sustained by the claimant herein relating to the above--described occurrence or event, - . and from all loss, damage and expense incurred directlyor indirectly by reason of the falsity or inaccuracy of any representation by the undersigned claimant. 5 3. . The undersigned hereby declares that the terms of this settlement and release have - been completely read and are fully understood and voluntarily accepted, for the purpose of making a full and final compromise, adjustment and settlement of_ any and all claims, disputed or otherwise, without any admissions of liability by the parties herein released. . 4. The undersigned shall dismiss with prejudice his Spokane Superior Court action tiled against Eastern Washington University under cause of action 2008-02400887-2 within 5 - business days of execution of this Settlement Agreement and Release. EWU will pay the above . agreed upon amount within 5 business days following receipt of a certified copy ofthe Order of I Dismissal with Prejudice by the EWU Business Onice, 307 Showalter Hall, Cheney, 99005 . (attn: Mary Voves). At the same time Mr. Hasan is provided payment by EWU, EWU will provide Mr. Hasan a copy of the most recent Curriculum Vitae (as of April 20, 2007) of all of the faculty of . 1--Management Department; and Information System. . - Page of 3 - - - SF-00145 - - PRR-2011-00450 5.. This Settlement Agreement and Release includes any attorney fees, icosts and any adverse tax consequences to plaintiff - DATED this day of August, 2000. I I l` Accepted'Jamee1 Has PlaintiE - STATE OF WASHINGTON - - I Ss - 2 COUNTY OF SPOKANE . I, the undersigned, a notary public in and for the State of Washington, hereby certify that on this day of August, 2008, personally appeared before me Jameel Hasan, to me known to . be the individual described and who executed the foregoing instrument, and acknowledged that he signed and sealed the same as his free and voluntary act and deed, for the uses and purposes therein mentioned. - Given under my hand and official seal the day and year last written. I - UBLIC in and fo the State - - . on, residing at 5 JUG - ommission expires 0 9 Approved as to Form: . - #14610 - . . for Justice . ey for Plaintiff . I .Page2of3_ i - SF-00146 PRR-2011-00450 I AcceptedDateves, Vice_President for - . I I Business and Finance, EWU . I . I STATE OF WASHINGTON . - - COUNTY SPOKANE I, the undersigned, a notary public in and for the State of Washington, hereby certify that on I -this sgg? day of August, 2008, personally appeared before rne Mary Voves, to me known to I be the individual described and who executed the foregoing instrument, and acknowledged that he signed and sealed the same as his free and voluntary act and deed, for the uses and purposes _therein - I mentioned. . I I Given under my hand and official seal the day and year last written. I I - PUBLIC in and for the State F, I Washington, residing at IS Q, I My Commission expires Approved as to FormDeborah K. Danner . . Senior Counsel I I . . Attomey for EWU I I `Page3of3 I sr=-oo141 PRR-2011-00450 - . . 1 EJLED 2 I I MAY 2 6 2665 3 . THOMAS C-UUNTYQ 6 . 7 8 IN THE SUPERIOR COURT oF THE STATE OF WASHINGTON i 9 IN AND FOR THE COUNTY OF SPOKANE . I 10 . STEPHEN M. SIMMONS 1 1 Plaintiff, NO. 06-2-00123 -5 12 v. FINDING OF FACTS, CONCLUSIONS I OF LAW AND ORDER DISMISSING 13 THE DEPARTMENT SOCIAL PETITION WITH 3 14 sERv1<;Es_ et. a1. Pnumnicn - 15 - I Defendant. 16 17 This matter came on for hearing before the undersigned court based on a motion and order i 18 to show cause Hled in Spokane County Superior Court on January 10, 2006. The motion and 19 order to show cause related to the enforcement of public record requests made by the plaintiH:Q Mr. 20 Simmons, of the Department of Social and Health Services in-the matter of Washington State v. 21 Simmons,. Cause N0's 03J7--O1865--4 and 03-7-01866-2. . 22 The first hearing date of February was continued to February 24th. On February 23 the court denied the PlaintifF request for live testimony at that hearing, heard argument and i OF FACTS, I 1 ATYOMQVEY i* -- or LAW AND onnmz Q, . 456-3123 . SF-00148 PRR-201 1-00450 1 continued the matter to March 17m. On March 17, 2006 the court again heard argument and 2 entered an oral decision. I I 3 Present at all the hearings were Mr. Simmons, pro se, Laurence D. Briney, Senior 4 Assistant Attomey General representing the- Department of Social and Health Services' (DSHS) 5 Division of Children and Family Services (DCF S), Robert Tadlock, DCFS supervisor who is 6 responsible for DSHS public records response in Spokane, Geri White, an Assistant 7 with DCFS who assists Mr. Tadlock in public record responses. Ms. White is the only person 8 -who testified in this matter. - 9 The court, having heard the testimony of Ms. White, the argument of both the plaintiff and 10 tlie State, court mak the 11 following; . 12 FINDING OF FACTS 13 1. All parties have been properly served and are properly before the court. I 2. 15 in Spokane County. In addition, plaintiff has three adult children. There were dependency 16- matters in King County as well. When the dependency cas were pending in Spokane County . 17 Juvenile Court, Mr. Simmons made for discovery or_ other 18 3. On August 2, 2005, the Spokane dependency cases were dismissed. . 19 4. On September 29, 2005, Mr. Simmons met with the assigned Assistant Attomey gi 20 General, L. Wolfe, #1-5555, and the assigned social worker, . 21 to discuss infonnation/documents he desired. ln a letter dated September 29, 2005, Mr. . 22 Simmons confirmed a meeting and asks, "Additional1y, I would like to be sure that we are clear 23 on the information Iam requesting. In accordance with WAC 388-01-030 (see reverse), I will 24 i expect to have available and access to all documents, audio and video recordings, pictures, e-mail, . 25; disks and-electronic FINDING OF FACTS, CONCLUSIONS 2 ATTORNEY GENERAL . or LAW AND oimaa . (509)456-3123 sr=-00149 PRR-2011-00450 - 1 considered this to be a request for public records and starting compiling all records they had 2 regarding Mr. in conformance to his request. 3 S. DSHS estimates and the court the information that Mr. Simmons wished 4 to review consists of approximately 12,750 pages. Each request was addressed by 5 DSHS and each request has had a response. Mr. Simmons was allowed to review multiple 6 volumes of Department Irecords from both Spokane and King Counties over two separate I 7 meetings. These Hles needed to be retrieved as they were not all in Spokane when they were I I 8 requested. Much of what Mr. Simmons has requested has been provided, but some documents - 9 were either redacted orIwitl1held based on legal exemptions. 10 6. DSHS responded by letter October 3, 2005 acknowledging receipt of the request I 11 I on September 29, 2005 Iand indicating a minimum of 30 days to respond. I 12 7. By letter dated October 4, 2005, Mr. Simmons sent DSHS a letter demanding the I 13 records and renewed his request. He requested information, regardless to its 14 storage location I I 15 8. By letter dated October 14, 2005, Mr. Tadlock informed Mr. Simmons of his role as 16 public records supervisor and that he would be assisted by Ms. Peterson. Mr. Simmons was told 17 that DSHS would need to . . draw the information together. We have to first review the material 18 and prepare it for your reviewletter dated Octobm? 21, 2005, Mr. Tadlock again kept Mr. Simmons informed of I 20 DSHS's progress saying, "Due to the volume of files and the amount of information which must . 21- i 22 longertogetthemtogether. for you. Iwillbein 23 contact with you as soon as we have the Elec available. We will allow you access as soon as one 24 file is completed, then access to the rest as they become available. Ido not foresee this taking too I 25- I I FINDING OF FACTS, CONCLUSIONS 3 I - ATTORNEY GENFEAL QF WASHINGWN or LAW AND oaoax I (sos) 456-3123 I SF-00150 I I PRR-2011-00450 I 10. By letter dated October 28, 2005, Mr. Tadlock alerted Mr. Simmons that, "the tiles 2 are being prepared for your review. We currently have 9 of the 14 volumes ready for your review. 3 - Please contact me at 363-3542 or Carol Anderson, at 363-3385 and schedule a time when you can 4 come in and review the iiles;" After all files were gathered, 17 tiles were generatedstated in the letter. I 6 1. By letter dated November 1, 2005, Mr. Tadlock again contacted Mr. Simmons 7 l` 8 review the tiles; Please understand our agency will provide a place where you can review the files 9 and- there will be a staff person who will be monitoring the review. This will 'a i 10 coordination of schedules? He also provided the physical address of DSHS. Mr. Tadlock 11 provided seven specific dates from November through the 10m along with specific tim . "We 12 will arrange a room. There will be a staff person who must be present during your review ofthe 13 This sta&` person will not be able to discuss any of the documents. Please refer any 14 I questions to Mr. Briney." Mr. Briney is the AAG whorepresented DSHS in this proceeding. 15 I Aiter the e-mail, Mr. Tadlock and Mr. Simmons spoke by phone and agreed to meet at DSHS on 16 November 7,2005. . 17 12. On November 7, 2005 Mr. Simmons went to DSHS in Spokane where nine volumes 18 were available for his review. Mr. Simmons was not satisied with what was available for his 19 because he had specific tiles in mind that were not there. Othm Hles were present, but 20 had. not yet been reviewed by DSHS. By letter dated November 7, 2005, Mr. Tadlock I .21 summarized what happened and stated tirrther, you came into the review the cases, you 22 stated the case volumes provided were not what you had requested. We have the information 23 which you requested, hand we have all the records, which include the ones you want to 24 review. You stated you wanted to review records from October 18, 2003 through present day. FINDING OF FACTS, CONCLUSIONS 4 ATTORNEY GENEIQAL QF - OF LAW AND oanaa - . (sos) 4ses1zs - Sli-00151 I PRR-2011-00450 . I I 1 unforttmately, none of those files had information within the time flame you wanted . . . we will 2 have additional tiles available for your review prior to Monday. Otherwise we will be looking for . 3 you on the 14m. I also provided you additional copies of contracts .. . You showed me an 4 assortment of Ele dividers with different colored tabs. I thought you were referring to DCFS Hle I 5 'secti0n VH: Payment'. If I am wrong please let me know." The court Ends that this is the - 6 time Mr. Tadlock and his public records section became aware that Mr. Simmons was seeking 7 something other than the traditional DCFS social tiles that were the focus of all previous efforts 8 bythe Department. . 9 13. November 14, 2005, Mr. Simmons had the opportimity to review the remaining .10 volumes nom volume 10 through volume 17e-mail dated November 15, 2006 Mr. Simmons, referencing reasons for denial 12 provided by Mr. Tadlock, states his objections to the various documents withheld. I 13 . 15. By letter dated November 23, 2005, Mr. Tadlock informed Mr. Simmons of the basis I 14 for the release of certain records and the legal basis for denial or redacdon. Because a DSHS 2 15 an ployee named Roddy is now involved as a result of his involv ent with DSHS contracts, I 16 this letter addresses issues relating to contracts that may have. first surfaced at the November 7, . 17 .2005 review of Hles 1 -- 9 at DSHS. I -18 1-se ii . 19 17. DSHS an intemal review process for public requests when the requester is 20 dissatisfied with the results. That process was invoked in thi_s matter and decisions regarding 21 the release of information to Simmons made in Spokane were reviewed again by DSHS I 22 management in Olympia. Based on that review, Mr. Simmons received additional information . 23 before the hearing on February 10, 2006 which was mailed to.him from Olympia on February 24 6, 2006FINDING OF FACTS, CONCLUSIONS SI AWGENEY GENERAL QF VIASEINGTUN I . or LAW AND ORDER (suv) as-me I I I sr=-00152 PRR-2011-00450 1 18. At the hearing on February 24, 2006,Ithe court inquired specifically of Mr. Simmons 2 inaneifortto ascertainexactly what he wanted inasmuchas argument by Mr. Simmons 3 focused on rather that the social records of DSHS which appeared . to have been 4 provided. The court Ends that Mr. Simmons expressed a ire for the contract information, 5 including or copies of warrants rega.rding two specific contract service providers. Mr. 6 Simmons was not interested in the other records of DSHS at this time. Based on that assertion, 7 the court continued the hearing until March 17, 2006 allow the department the time to provide 8 these records. Speciically, the Department was to produce- the financial records contained in the 9 social iiles behind the tab set aside for that purpose. I 10 19. The hearing on February 24, 2006, was the first time that DSHS was made completely . 11 aware of exactly what Mr. Simmons was seeking under several public records requests. The I 12 court finds that the several requests were, by their general nature, not speciic enough especially 13 when it appears that all requests focused on social records, not records. This court 14 denied 20. Ms. testimony revealed, and the court iinds that all iinancral records as 19 requested by Mr. Simmons have been provide _to him and the court. These records were provided 20 without redactions and were obtained from gh the tinancial tab ofthe social tiles as well as trom 21 a computer data base that is the repository for warrants issued by DSHS. Ms. White - 22 another employee, Ms. Robin Ray, who produced the warrants her. The warrants or records of 23 warrants were not associated with the social iles and were kept in another location. The warrants I 24 were anew issue not sought before. I 25 - . . FINDING OF FACTS, TJONCLUSIONS 6 ATTORNEY GENERAL QF WASHINGTON I OF LAW AND oanaa - . . (sos) 456-3123 . SF-00153 PRR-2011-00450 1 21. This court iinds that "It would be foolish to set rigid timelines on this type of records 2 request". 3 22. The State has told court _that "that's what we have" with regards to the requested 4 records and this court has no reason to believe otherwise. "'l`he State has complied, providing 5 everything in- their poss n,,E il am satisfied the State has complied on a timely basis." 6 . CONCLUSIONS OF LAW 7 Based on the foregoing Endings of fact, the court makes the following conclusions of law: li 8 1. The court has jurisdiction over the persons and subject matter of this case. 9 2. The State of Washington and DSHS have complied with the process set forth by the l0 legislature for complying with public records requests. lThe.State of Washington and DSHS have 11 been timely in their response considering the nature of the requests because the records of social 12 and Hnancial records of DSHS are indifferent places and because the specific request of Mr. 13 Simmons for financial records under the public records law was not fully articulated to the State I 14 of Washington the hearing on February 24, 2006. I 1?5 3. The public request letter to DSHS on September 29, 2005 relates to a meeting - 16 with Ms. Wolfe and Ms. Murman. It does not mention what was discussed in their meeting, other 17 than requesting to "review the case files we spoke of ra detail". 'l`he does not mention what . 18 Mr. Simmons was really looking for. Therefore, Mr. Tadlock started to compile all the social Hles 19 for him, including records from another county that were intended to be requested i 20 It was only at the hearing on February 24, 2006 that the court was able to determine 21 what he desired. 'I`he court concludes that DSHS did not tmderstand what Simmons sought in 22 terms of the Hnancial records and was justified in their actions under the law. 23 4. Based on the testimony of Ms. White, - . - 24 the production of documents to Mr. Simmons, and the representation of Brincy FINTDING OF FACTS, CONCLUSIONS 7 ATFEENEY GENERAL QE WASHINGTON or LAW AND ORDER Zim i I (sos; 456-3123 I ss-00154 - PRR-2011-00450 1 alter consultation with his clients, the court concludes that all the financial records relating to Mr. 2 Simmons request available to DSHS have been provide without redaction. 3 5. DSHS, in its attempts to provide Mr. Simmons with the material they understood he 4 wanted and providing the financial records, has complied with the Public Records Act and 5 this matter should be dismissed, with prejudice, each party being responsible for their own costs. 6 . ORDER I 7 Based on the foregoing of fact and conclusions of law, the court hereby ORDERS 8 9 1. The Motion and Order to Show Cause regarding the enforcement of this public records 10 request for public records is hereby dismissed, with 11 2. Each partyis responsible for their own costs. 2 . 43 - 12 DATED this day of May 2006ented by: KATHLEEN LAURE CE D. BRINEY, WS 570 . Senior Assistant Attomey Gener . 18 gl/p Gil - 20 Plain FINDING OF FACTS, CONCLUSIONS 8 ATTORNEY GENBIQM 91* or LAWAND oaona (sos; 456-3123 sr=-001ss PRR-2011-00450 I _Jan 31 zoos 3: HLO . eos-524-4432 Honorable Charles W. Mertel - Noting Date of Motion: January 13, 2006 . Without Oral Argument . THE SUPERIOR COURT OF THE STATE OF WASHINGTON . . 9- - IN AND FOR THE COUNTY OF KING . 1:1 LANCE MUSSELMAN, a single man, Case No. 04-2-23755-6 SEA ORDER GRANTING - I 12 Morrow ro DISMISS *3 paoposao WASHINGTON STATE FERRIES, a - 14 divlslon ofthe Washington State Department . 15 of Transportation, . l- I Defendant. l` 1 .16 - 17 THIS MATTER having come before this Court on Plaintiffs CR Motion to 1B Dismis Prejudice based on settlement and the Court having reviewed and considered the 19 Plaintiffs motion, the Settlement Agreement which is attached as Exhibit A, and the pleadings . 20 ltled in this case, . i 21 NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs motion to dismiss is :22 granted and the Plaintiffs Public Records Act claim against Defendant Washington State . 23 Ferries Is dismissed with prejudiceHART uw oi=i=Ice - . ORDER GRANTING MOTION TO DISMISS - 1 5000 - Ave. N.E., Suite 410 - - SEATTLE, WA saws - Telephone!Fax (208) 524-4482 .- .ss-dolse In PRR-2011-00450 . I I Jan :-11 anus urn HL0 . DATED Ihl ly nf JBYILIITY, ZDDG. - . 3 i Judge Charln W. Marla! ny; -. 5 HART mw OFFICE Shaum G. Hart, 25917 - 11 8 Attorney Plaintiff . . . 9 Approved . Nutlca of Presentation walwnd: - - . -`if Rus MGKENNA - - - *1 ATTORNEY GENERAL - - Doug I. 32806 1 14 Anlstant Atbumay General 1 15 Aitnmay fur Dafsndanl . ?a=r=rcE 1; - . ORDER Emmaus morrow TO mswuss - sums. WAN105 . . -. I . - 1{?Ioph?nolFax (206} 524-4482 PRR-2011-00450 eos-524-ssaz i I I EXHIBIT A . - I - This Settlement Agreement and Release ("Agreement") is made by and between Plaintiff Lance Musselman ("Musselman"). and Defendant Washington State Ferries (collectively, the "Parties"), l. The Parties desire, by this Agreement, to settle their dispute regarding I Musselman's Public Records Act claim against WSF, Mtuselmmi v. Washington Sr re . i - . Ferries, King County Superior Court Cause No. 04-2-23 755-6 SEA ("Lawsuit"). - 2. Au Ente i 1 le The Parties represent that they have -- authority to ter into this Agreement and bind the partie on Whose behalf he/she signs . - and that they own or have the right to settle and release each and all ofthe claims referenced herein. . . 3. [aymept. In consideration of the dismissal of King County Superior Court Cause No. 04- an 2-23 755-6 SEA and agreement to the release outlined below at paragraph live, WSF i . agrees to pay Musselman $2 I ,000-00 (twenty-one thousand dollars). This amount includes all attorneys' fees, co ts, and interest related to any and all claims, damages or . causes of action direct or indirect, arising under King County Superior Court Cause No. . . 04-2-23 755-6 SEA. 1 I - - 4. Fjgigg Menon Qismissal Bug; on Seglemggt, In consideration of WSF's - - Lggreement to. pay $21,000, Musselman will tile a motion for dismissal with prejudice of i his Public Records Act claim against WSF arising under King County Superior Court . - Cause No. 04-2-23755-6 SEA, and reference this settlement Agreement. . 5, Rglease, Except for the obligations arising from this Agreement, the Parties release each - other &om any and all claims, damages and causes of action, arising under King County . `Superior Court Cause No. 04-2-23755-6 SEA. Fiuther, Musseltnan releases WSF, its otlicers, agents, employees, agencies, and departments for any and all exi ting and future claims, damages or-causes of action arising from any and all Public Records Act requests Musselman submitted to the WSF between June 23, 2003, and the date ofthe execution . of this Agreement. I 6. of Qglic Records get The Parties agree that any and all Public . - - `Records Act requests tiled by Musselman or his representative between June 23, 2003, - - - and the date of the execution of this Agreement, are hereby closed. - 7. Ng Admission gf Liability. This release and settlement agreement is not an admission of I . . liability by, or with respect to, any party to this action, dr any other agent, oltieer, - employee or department of the State of Washington. I 8. Egeeutigg of Dqgurnents, The parties agree to eztecute any and all further documentation - as may now or later be required to effectuate the underlying purpose of this AgreementF-00158 I I . - . ERR-2011-00450 Jan anus :4:44pn- ans-sa4-use i 1 I Lu Imam .-. . . I I I . nucl -. . . gunslhssutOpuob.,,APRR-201 1-00450 3608759351 PACIFIC COUNTYJUVENI County uvenlle Court 10:47:04 a.m. 08-29-2011 STATE OF WASHINGTON PACIFIC COUNTY SUPERIOR COURT 8 CHARLES and JANICE WOLFE, husband and 9 wife; Joim and DEE husband and N0- ,0 Plaimm ORDER c1m~rr11s1o Morrow vs TO DISMISS PUBLIC RECORDS I I I ACT CLAIMS sure or WASHINGTON DEPARTMENT I2 or TRANSPORTATION, I3 Defendant. I4 THIS MATTER came on for hearing before the imdersigned judge, with the court is having considered the State of Wasbington's Motion to Dismiss Public Records Act Claims I6 and supporting declarations, Plaintiffs' Response and supporting declarations, if any, the State's Reply, and the tiles and records herein. The Court being fully advised, it is hereby I8 ORDERED, ADJUDGED AND DECREED that Plaintiffs' Public Records Act claims I9 are hereby dismissed without prejudice. 20 DATED thisg day omugust, 201 1. 2l 22 23 rior Court Ju ge 24 25 26 ORDER cnurmc MOTION TO DISMIS 1 Arroawev GENERAL or wasnmomu PUBLIC RECORDS CLAIMS Tranqaomtion Public Division 1141 cimwer Drive sw PO mx 401 I3 OlY'?Pil. WA 98504-0113 (360)753-6126 Facsimile: (360) 5|6-6847 SF-00160 PRR-201 1-00450 3608759351 PACIFIC COUNTYJUVENI Coumyluvenlle Court 10:47:20 a.m. 08-29-2011 4 I4 I 2 ROBERT M. MCKENNA 3 Attorney General 4 5 6 DOUGLAS D. SHAFTEL, WSBA #32906 Assistant Attomey General 7 Attomey for Defendant State of Washington 8 9 LAW OFFICES OF ALLEN T. MILLER, PLLC I0 I I ALLEN T. MILLER, WSBA #12936 12 Attomey for Plaintiffs Wolfe and Anttonen ORDER 1v101'10N 1*0 ursnu 2 Arrommv oismsruu. or PUBLIC RECORDS CLAIMS Division I P0 sox 401 is oiympu, ws mon-u1 is Facsimile: (360) SI6-6847 SF-00161 PRR-201 1-00450 1 I I I3 EXPEDITE (ir tiring nnrnin gnun days or nearing) nm - 2 I Hearing is set: . I 3 I 21, 2011 ?j Zim 4 JudgeICalendar: Paula Casey ELBEEICE IC 5 CONSTRUCTION DIVISION 6 I SUPERIOR COURT OF WASHINGTON 7 I FOR THURSTON COUNTY I ACS State Local Solutions Inc NO. 10-2-00218-6 PlaintiffIPetitioner, 9 vs. NOTICE FOR DISMISSAL i FOR WANT OF PROSECUTION - 10 I State Department ofTransportaI1oni Detendant7Respondent. - 11 - 12 1. There has been no-action of record on this case tor the past twelve (12) months. 13 2. Pursuant to Civil Rule 41 this case will be dismissed without prejudice by the Court for want of 1 prosecution unless within thirty (30) days of the mailin of this Notice an application is made to the Court in 14 writing or by appearing in person, and good cause is shown why it should be continued as a pending case. 15 I Further a $30.00 fee will be assessed against the petitioner(s) or their attomey of record pursuant to the Thurston County CIerk's Oftioe Policy for Dismissal of Abandoned/Stagnant Cases (complete policy located at 16 3. The court hearing on this matter will be held before the Judge Paula Casey on Friday, October 21, - 2011, at 9:00 a.m. at Thurston County Superior Court, Building 2, 2000 Lakeridge Drive SW, Olympia, 18 1 Washington. 19 I 4. This Notice was mailed or delivered through a messenger service to the attomeys andlor parties 2 0 listed below on September 15, 2011. 21 I DATED: September 15, 2011 BETTY J. GOULD, COUNTY CLERK 22 23 By: Ka Charpentier, uly Clerk 24 I Attorneys of Record: 2 5 Gregory Wong/Matthew Segal Lawrence Lockwood 2 Attomeys At Law Attomey At Law 6 1191 2nd Ave Suite 2100 PO Box 40113 2-, Seattle WA 98101-2945 Olympia WA 98504-0113 2 8 . I INIOTICE FOR DISMISSAL - 1 Mg\dsrn\FORM Nodoe and Onder.uoc, 7/23/02 2 E1 EXPEDITE AUG 2 3 2011 No hearin set El Hearing isgset THU 3 Date: RSTON COUNTY CLERK I Time: 4 Judge/Calendar: Thomas McPhee . 5 7 SUPERIOR COURT OF WASHINGTON FOR COUNTY 8 ADT SECURITY SERVICES, INC., NO. ll-2-01692-4 9 Plaintiff STIPULATION FOR AND 10 ORDER OF DISMISSAL v. WITHOUT PREIUDICE ll WASHINGTON STATE DEPARTMENT OF 12 TRANSPORTATION, 13 Defendant. l4 1 5 STIPULATIQN I6 COME NOW p1aintiH` ADT Security Services, Inc. and 17 Washington State Department of Transportation through their undersigned 18 counsel of record, and WSDOT having advised that John Zamarra/Computer Consultants 19 Intemational, Inc. has withdrawn its Public Records Act request for ADT's RFI Response, the 20 parties hereby stipulate pursuant to CR 41 that this action should be dismissed without 21 prejudice and without costs to any party. The parties further stipulate to the entry ofthe 22 subjoined Order without further notice of presentation. 23 DATED this of August, 2011. 24 25 STIPULATION FOR AND ORDER OF DISMISSAL Kutner at Gibbs PLLC wrmour - 1 ms UI my (206) 628-2420 Seattle SF-00163 PRR-201 1-00450 L. Scott Lockwood, WSBA 19248 Jo . Knox, WSBA #12707 2 0Ece ofthe Attorney General WILLIAMS, KASTNER GIBBS PLLC PO Box 40113 601 Union Street, Suite 4100 3 WA 98504-0113 Seattle, WA 98101-2380 P: (3 60)753-1 620 P: (206) 628-6600 4 Email: Email: i1cnox@wnri11iarnskasmer.com 5 Attomeys for Washington State Department Attorneys for Plaintiff ADT Security Services, of Transportation Inc. 6 . 7 ORDER 8 This matter having come before the Court on the foregoing Stipulation of the parties, 9 now, therefore, it is hereby 10 ORDERED that this case is dismissed without prejudice and without costs to any 1 1 party- 12 13 DONE IN OPEN COURT th day of August, 2011. 14 nssem zmu 15 EX PARTE 16 17 Y: 18 John A. Knox, WSBA #1 707 19 Email: 20 Attomeys for Plaintiff ADT Security Services, 21 IncScott Lockwood, WSB 19248 Email: scott1@gg.wa. gov 23 Attomeys for Washington State Department 24 of Transportation 25 STIPULATION FOR AND ORDER OF DISMISSAL PLLC . WITHOUT PREJUDICE - 2 Sauk (206) 62:-2420 same 1220009.1 - SF-00164 PRR-2011-00450 A RECE FEB 1 7 2Ull 5 1 4S.asi? 2 COURT 2 comsiaucino P"?iY??4?ut? 3 . M- THURST .. 4 IN THE SUPERIOR COURT OF THE STATE OF WASHIN TON IN AND FOR THE COUNTY OF THURSTON 5 . 6 JOHN DOE, a single person, 7 - riainurr, No. 3 -093 K9 8 9 . 10 PAULA HAMMOND, Secretary, Depart- ment of Transportation, DEPARTMENT ORDER ON REDACTI 1 1 TRANSPORTATION, and the STATE OF PUBLIC RECORDS 12 Of WASHINGTON, 13 Defendants. 14 l5 THE COURT, upon Motion of the Plaintiff} by and through his ttomey of record, 16 Michael Hanbey, with response iiom the attorney for Defendants, Scott ckwood, Assistant 17 Attomey General, having heard argument, and having reviewed the subject do uments in camera, is and having entered a written opinion on 2 February 2011 regarding applic tion of the Public is . 20 Records Act, Chapter 42.56 RCW, the Public Records Act, and having det ined that certain 21 portions of the subject documents should be redacted pursuant to RCW 42.5 .230(2) and RCW . 22 42.56.520, to ensure the privacy interest ofthe plaintiff, incorporating by this re erence the Court's 1 23 written opinion, NOW THEREFORE, 24 (C) 25 ORDERS, ADJUDGES AND DECREES that 2 6 A. Proposed Redactions adopted by the Court: Wm. Michael anbey, PS Attorney Law . Order on Rcdaction-- 1 Box 5,5 Olympia. 98507 seo- svo-1636 360.510-usc; sr=-omas PRR-2011-oo4so 1 l) The redactions proposed for the first two paragraphs on page Fo (4) of Document a 2 shall be made; 3 2) The redactions proposed for paragraph Two (2) and Tlu?ee (3) on 1, continuing on 4 5 to page 2 ofDoc1unent shall be made; 5 3) The redactions of the true name of the Plaintiff in all of Document shall be made; 7 4) All proposed redactions in Documents d, and g, shall be made; 8 B: No other proposed redactions to the subject Documents shall be e; 9 i C. Review by Plaintiff or Representative Prior to Release: 1 0 11 Before any document considered by the Court is released by fendant for which 12 redaction has been Ordered in Paragraph A, above, the Plaintiff or the presentative ofthe 13 Plaintiff shall be permitted to review the documents with redactions im osed by this Order 1 4 to enstu?e that compliance with the Order is confirmed. 15 . 1 6 Dated this jl Day of February 20l 1. . 17 18 Paula Casey, Judge 1 9 Department 1 20 Presented by: Approved as to Fo Notice ofMichael Hanbey, 7 9 Scott ekwood, A 2 4 Attomey for Plaintiff Attorney for Defend ts 25 I 26 Wm. Michael 2 anbey, PS Attomeyut Order on Redaction-- 2 Bm 75 Olympia. WA 8601 360- 570-I636 Pax 360-570-1 $93 SF-00166 PRR-2011-00450 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF THURSTON EVERGREEN FREEDOM FOUNDATION, Plaintiff, vs. WASHINGTON STATE SUPERIOR COURT NO. DEPARTMENT OF TRANSPORTATION, 10-2-00775-7 Defendant. RULING OF THE COURT BE IT REMEMBERED that on July 23, 2010, the above-entitled and numbered cause came on for hearing before JUDGE PAULA CASEY, Thurston County Superior Court, Olympia, Washington. Pamela R. Jones, Official Court Reporter Certificate No. 2154 Post Office Box 11012 Olympia, WA 98508-0112 (360)754-3355 x6484 jonesp@co.thurston.wa.us 1 SF-00167 PRR-2011-00450 A A A For the P1aintiff: MICHAEL J. REITZ Attorney at Law EVERGREEN FREEDOM FOUNDATION 2403 Pacific Avenue SE Olympia, WA 98501 For the Defendant: L. SCOTT LOCKWOOD Assistant Attorney Genera1 Post Office Box 40113 Olympia, WA 98504-0113 2 sr=-com PRR-zo11-oo4so 1 Ju1y 23, 2010 01ympia, washington 2 MORNING SESSION 3 Department 1 Hon. Paula Casey, Presiding 4 APPEARANCES: For the P1aintiff, Michae1 J. Reitz, Attorney 5 at Law; for the Defendant, L. Scott Lockwood, 6 Assistant Attorney Genera1 7 Pame1a R. Jones, Officia1 Reporter 8 9 THE COURT: First of a11, RCW 42.56.070(1) 10 indicates that there are exceptions from disc1osure 11 and pub1ic inspection for records that are exempt by 12 other statutes, statutes which exempt or prohibit the 13 disc1osure of specific information or records. I'm 14 going to determine that a federa1 regu1ation wou1d 15 fa11 within the other statute exemption of the 16 washington Pub1ic Records Act. 49 CFR 40.321 seems 17 to specifica11y prohibit the government agency's 18 re1ease of the drug and a1coho1 testing records. It 19 appears to me that there is statutory authority a1so 20 for that regu1ation in 49 USC 5331. 21 Now, having said that, that wou1d be ru1ing in 22 favor of the State and denying the p1aintiff's 23 request for summary judgment. That's what I intend 24 to do. but I wi11 say that there does seem to be a 25 difference in the reason for the regu1ation re1ated 3 1 to the management of a workforce and doing genera] 2 drug testing and the gathering of information 3 post-accident. I'm dismissing p1aintiff's motion for 4 summary judgment at this juncture. I'm not 5 forec1osing the p1aintiffs from Tater arguing that 6 somehow the distinction wou1d require the disc1osure 7 of the investigative information. I don't know how 8 you wou1d ever get there, but it certain1y seems 9 there's a difference between the reason the 10 regu1ation was promu1gated, to regu1ate a workforce, 11 and what the resu1t has been in this case with 12 respect to post-accident gathering of information. 13 I'm further going to ru1e that the Department of 14 Transportation has no ob1igation to request the 15 consent of the peop1e who are drug tested, a1though 16 this regulation specifica11y indicates that the 17 information can be re1eased with consent. 0f course 18 we know that is a1ways the case with respect to any 19 pub1ic record, and it seems inappropriate that the 20 Court impose upon the State agency an ob1igation to 21 seek out that consent. So summary judgment is 22 denied. 23 MR. LOCKWOOD: Thank you, Your Honor. 24 --oo0oo-- 25 4 CERTIFICATE OF REPORTER STATE OF WASHINGTON COUNTY OF THURSTON I, PAMELA R. JONES, RMR, Officia1 Reporter of the Superior Court of the State of washington, in and for the County of Thurston, do hereby certify: That I was authorized to and did stenographica11y report the foregoing proceedings he1d in the above-entit1ed matter, as designated by counse1 to be inc1uded in the transcript, and that the transcript is a true and comp1ete record of my stenographic notes. Dated this the 2nd day of August, 2010. Isl PAMELA R. JONES, RMR Officia1 Court Reporter Certificate No. 2154 5 :11 Laurafi. `2 iz1.5- g. ?umm:?ry 12*- I Ss?afxlwicw- I Gary Mama. I gludgmam gg; Hg; 22 $0 Yfamiblc ?Y5.q5ts and kes:. 3*4 THIS EER hawi?ng mma mx before the xandcinisigmcd ci" the- .25 iPi&?i1lIiif?; rotcci Ziiaixttle .N?w,c mziingc-by and .a1ittm1cy= I 36 Mmwa, and me Deltimdanzng Sum mparnmeug uf acting by I Biviwizm Fi? E3 mam 25;.sam megsmm; esac; SF-00172 PRR-2011-00450 -1 Scuaif ah;} i?acsgz 'p;a;ti?s 2Q fhaving itmde and Stipulsxtiman, without. amy df: `Ei;ibiEi?y, and 3 2, against fbadismi?sai svizh . .. . . I - pnzsiudicgc, and appcamxgg Quart, avatar :1 uf sim; {iles.-and and, 5 of-counsel in sum bf 5 just settiezmemt Lu bc__pa?id_ by {hc Whihi-Agana Stem uf to eSwttiEUR?- Now; amd the i fiimrz - -i -., Q--. . .. 9 I-I IS that Naw shuil H3 -ag;1i?7;st suit; of Five- uzsxmimimz, m? nmamntWSQBANO-- 3; tiny B?fimdzint Staic *32, Pubiic E?i Diiw-SW - zmxaum .. WA $3 sacsmig, SF-00173 PRR-2011-00450 I I- leni ml-Honorable Christine Pomeroy a 3 I FEB 2 5 2011 4 5 7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 3 IN AND FOR THURSTON COUNTY 9 TALGO, INC., a Washington corporation Case No. 10-2-01218-1 10 Plaintiff, STIPULATION AND ORDER 1] OF DISMISSAL . v. 12 WASHINGTON STATE DEPARTMENT OF 3 TRANSPORTATION, 14 Defendant. 15 I. STIPULATION 16 PLAINTIFFS, Talgo, Inc., and DEFENDANT, Washington State Department of 17 Transportation, through their attorneys, stipulate that the claims asserted in this action have been 18 Billy settled, resolved or compromised and that an order may be?entered dismissing the action with - 19 prejudice and without an award of costs to either party. 20 Dated: February 08, 2011. 21 22 KELLEY, DONION, GILL, - ATTORNEY GENE WASHINGTON HU CK GOLDFARB, PLLC 23 . 24 I 25 B?ggb I 1..s our. oa, 26 en J. Iley, WSB 23975 A eys for Defendant Attorneys for Plaintiff - 27 28 KELLEY, DONION, G11.1, STIPULATION AND ORDER FOR DISMISSAL - I GOLDFARB, PLLC . vm mum menus, sui-memo wa 98104 tclqahunc (206) 452-0260 fax (206) 397-3062 I SF-00174 PRR-201 1-00450 1 I1. ORDER 2 Based on the above stipulation of the parties, it is ORDERED: 3 This action is dismissed prejudice and without an award of costs to either party. 4 CHRISTINE A Pgnne 5 Date: 6 JUDGE CHRISTINE POMEROY - 7 Presented By: Approved, and Notice of Presentation Waived By: 8 KELLEY, DONION, GILL. ATTORNEY GENERAL OF WASHINGTON 9 HUCK GOLDFARB, PLLC 10 11 By 12 . Lockwood,. WSB 19248 Stev J. Iley, WS 23975 Attorneys for Defendant 13 Attomeys for Plaintiff ICELLEY, DONION, STIPULATION AND ORDER FOR DISMISSAL - 2 HUCK8: GOLDFARB, PLLC AVIRJUI-L mx 98104 (206] Fa: 397-3062 SF-00175 PRR-201 1-00450 1 EXPEDITE i No hearing set 2 Hearing is set Date: 3 Time: 4 Judge/Calendar: Christine A. Pomergg I. 5 6 Honorable Christine A. Pomeroy 7 . Hearing DateTHE SUPERIOR COURT OF THE STATE OF WASHINGTON . 10 IN AND FOR THURSTON COUNTY 11 TALGO, INC., a Washington corporation, 12 Plaintiff, N0. 11-2-00411-O v_ AND ORDER 13 or 14 STATE DEPARTMENT OF TRANSPORTATION, - 15 . Defendant. . 16 I and 17 IBEW LOCAL 46, a Washington non-profit organization. . 1 T9 As Intervenor. 20 I. I 21 PLAINTIFF, and DEFENDANT, Washington State Department of Transportation, I- .22 through their attorneys, stipulate that because the requestors have all withdrawn their public records 23 requests in this matter, that there is no matter at controversy, and that an order may be entered 24 dismissing the action without prejudice and without an award of costs to any party. 25 26 xx STIPULATION AND ORDER OF DISMISSAL 1 KELLEY, DONION, GILL, HU CK GOLDFARB, PLLC i 701 FIFTH AVE. SUITE 6800 SEATTLE, WASHINGTON 98104 (206) 452-0260 FAX (206) 397-3062 SF-00176 PRR-201 1-00450 1 Dated: September 2011. I 2 . 3 KELLEY, DONION, ATTORNEY GENERAL OF WASHINGTON 4 HUCK GOLDFARB, PLLC stem J. Kelley, wsBA 23975 L-- BA 19248 . . 10 . H. ORDER 1 1 12 Based on the above stipulation of the parties, it is ORDERED: 13 This action is dismissed without prejudice and without an award of costs to either party. 14 15 Date: JUDGE CHRISTINE POMEROY 16 . 1 7 18 Presented By: Approved, and Notice of Presentation Waived By: 19 KELLEY, DONION, GILL, ATTORNEY GENERAL OF WASHINGTON 20 PLLC Steven Kelley, WSBA 23975 L. Sc Lockwood, WSBA 19248 24 Attorneys for Plaintiff Amn`n?YS for 25 26 I STIPULATION AND ORDER OF DISMISSAL 2 KELLEY, DONION, GILL, HUCK GOLDFARB, PLLC 701 FIFTH AVE. 6800 SEATTLE, WASHINGTON 98104 - TELEPHONE (206) 452-0260 FAX (206) 397-3062 SF-00177 I PRR-201 1-00450 1 i Honorable Jim Rogers SUPERIOR COURT OF WASHINGTON 9 FOR KING COUNTY 10 li TELVENT CASETA, INC., 11 I Case Na. 10-2-04463-9 sm 12 onnmz GRANTING Morton ro I PERMANENTLY ENJOIN PUBLIC 13 i WASHINGTON STATE DEPARTMENT OF DISCLOSURE OF TRADE SECRETS TRANSPORTATION, a Washington state 14 governmental entity, 15 Defendant. I6 I 17 THIS MATTER came before the Court on Telvent Caseta, Inc.'s ("Telvent's") Motion 18 to Enjoin Public Disclosure of Trade Secret Documents ("Motion"). 'I`he Court reviewed 19 I Telvent's Motion and the sworn declarations submitted to the Court and has been made aware I 20 that the Washington State Department of Transportation does not oppose the 21 Motion. The Court is further informed that WSDOT has provided notice to the records i i 22 requesters of this litigation and that no records requester has sought to oppose a permanent 23 iniunction. 24 Having been fully informed, the Court makes the following finding of fact and i 25 conclusions of law and orders that Telvent is entitled to the relief sought. i 26 ORDH GRANTING MOTION TO ENJOIN I vuauc DISCLOSURE or TRADE -1 DLA Pipsri-1?P (US) . Cas, Nm 1g.2..g446g,.g SEA 701 Filth Avenue, Suite 7000 . Seattle, WA 98104-7044 Tel: 206.839.48OO sr=-com PRR-2011-00450 1 FINDINGS OF FACT AND CONCLUSIONS OF LAW 2 l. Telvent seeks to enjoin the public disclosure of the following documents 3 (collectively, the "'I`rade Secret Doc1unents"): 4 I a. Trade Secret Portions Pmposal; . 5 Section Section 1.C (pages 1-5) of the Telvent Toll Proposal 6 Tax Identification Number: Telvent's Federal Tax Identification Number 7 I and Washington Uniform Business Identification Number on page 6 of the 8 I Telvent Toll Proposal. 9 Technical Propgsg; Section 2.0 (pages 25-57) of the Telvent Toll 10 I Proposal. 11 Confidential Financial Information: Attachment 1 to the Telvent Toll 12 I Proposal, except f`inancia1 information filed publicly with the SEC by 13 I subcontractor WPCS International, Inc. 14 I Technical Design Drawm' gg: Attachment 2 to the Telvent Toll Proposal. 15 I Attachment 5 to the Telvent Toll Proposal. 16 I Project Management Attachment 6 to the Telvent Toll Proposal. 17 I Bid Prigm' g: The Pricing Sheets, Bill of Materials, and Price Certification 18 Form in Volume Two ofthe Telvent Toll Proposal. 19 I b. Trade Secret Portions of Tglyen; Back-Office Proposal 20 I Section 3.0: Section 3.0 (pages 1-5) of the Telvent 21 I Proposal. 22 Tax Identification Number: Telvent's Federal Tax Identification Number 23 and Washington Uniform Business Identification Number on page 6 of 24 the Proposal. 25 Confidential Cugtger Igfonngjign: The confidentialcustomer contact 26 infomation on Exhibits 5.c-2, 5.c-3, 5.c-4, Appendix 7, and Attachment I ORDER GRANTING MOTION TO ENJOIN PUBLIC Seattle, WA 98104-7044 Tcl: 206.839.48OO I SF-00179 PRR-2011-00450 1 2 to the Telvent Back-Ofiice Proposal. - 2 Technical Qposal: Section 6.0, pages 111 and 120 of Appendix 8 3 thereto, Attachment 3, and Attachment 8 to the Telvent Back-Oflice 4 Proposal. I Attachment 1 to the Telvent Back- 6 Office Proposal. 7 2. Telvent moved to enjoin the disclosure of its Trade Secret Documents rmder the . 8 Uniform Trade Secrets Act RCW 19.108 et seq. 9 3. The Trade Secret Documents constitute a tmique electronic toll collection and 10 back-omce customer service and collection system that is valuable to Telvent and that was the 11 result of a substantial investment of time and energy by Telvent and its employees. 12 4. The Trade Secret Documents provide substantial value to Telvent because they 13 provide a design and method for constructing, implementing and operating a profitable, 14 efficient, and technologically advanced electronic tolling and back-office system. The Trade 15 Secret Documents would be valuable to Te1vent's competitors if disclosed. 16 5. The Trade Secret Documents also set forth a unique strategy, methodology and 17 formula for pricing Telvent's electronic tolling and back-office system. Telvent's pricing . 18 formula provides it with a valuable competitive advantage in seeking to obtain multi--million 19 dollar contracts. 20 6. The information contained in the Trade Secret Documents is proprietary to 21 Telvent and is not generally known or readily ascertainable by proper means. 22 7. The Trade Secret Documents derive substantial actual and potential economic 23 value from not being generally known or readily ascertainable by proper means. Telvent 24 obtains competitive advantages from the information in the Trade Secret Documents. 25 8. The Trade Secret Documents are the subject of efforts by Telvent that are 26 reasonable under the circumstances to maintain their secrecy. Telvent protects its Trade Secret ORDER GRANTING MOTION TO ENJOIN PUBLIC Seattle, WA 98104-7044 Tel: 206.839.4800 SF-001ao PRR-2011-00450 1 Documents by access to its trade secrets to only necessary employees on secure 2 1 computer sewers and in locked cabinets, and by obtaining confidentiality agreements from 3 employees with access to such contidential information and documents. 4 I 9. Telvent's Trade Secret Documents qualify as trade secrets under the UTSA, 5 I RCW 19.108 et seq. 6 1 10. Telvent does not consent to the disclosure ofthe Trade Secret Documents. 7 ll. WSDOT acquired the Trade Secret Documents under circumstances giving rise 8 to a duty to maintain their secrecy and limit their use. I 9 I 12. Public disclosure of Telvent's Trade Secret Documents poses a serious and 10 imminent threat of substantial and irreparable injury to Telvent by disclosing its valuable 1 proprietary commercial information to its competitors and injuring its competitive advantage in 12 future bid proposals for electronic tolling and back-office systems,. 13 13. 'I'he public has an interest in preserving the confidentiality of Telvent's 14 proprietary intellectual property to prevent unfair competition in Washington state. 15 14. The public has an interest in preserving the confidentiality of the Trade Secret 16 Documents to encourage businesses with the best teclmology and with valuable products and 17 services to compete for contracts in Washington without risk of losing their proprietary 18 intellectual property. 19 15. Public disclosure of the Trade Secret Documents would clearly not be in the 20 public interest. 21 16. Telvent has met the standard for enjoining public disclosure of records set forth 22 1 in RCW 42.56.540. 23 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 24 I l. Te1vent's Motion is GRANTED. 25 2. WSDOT is hereby permanently enjoined from disclosing the Trade Secret 26 Documents identified above and in Tclvent's Motion, and all duplicate copies thereof} in its Du spam qs I can N0. 10-2-04463-9 SEA Seattle, sr=-oo1s1 PRR-2011-00450 1 possession, custody or control. 2 3. With the exception of the Trade Secret Documents, all other Telvent documents 3 subject to records requests shall be disclosed by WSDOT within 30 days after the entry of this 4 order. 5 4. To ensure that no Trade Secret Documents are inadvertently disclosed, WSDOT 6 i shall provide the undersigned counsel for Telvent with a tbl] copy of all redacted documents to 7 be disclosed no later than 14 days prior to the date of disclosure. 8 Dated this day of' it li; 2010. 9 I 10 JAMES E. BQQEBS HONORABLE JIM ROGERS - . Pre ented By: 1 1 12 13 .I?Ia1?per, WSBA No701 Fiith Avenue, Suite 7000 I Seattle, WA 98104-7044 . 15 Tel: 206.839.48OO Fax: 206.839.480l 16 E--mai1: 17 I Attorney for Plaintiff I Telvent Caseta, Inceott ckwood, WSBA No. 19248 22 Assistant Attomey General P.O. Box 40113 . - 23 Olympia, WA 98504 (360) 753-6126 24 Attorney for Washington State . 25 i Department of Transportation 26 I wss?nz2?s11ss.1 ORDER GRANTING MOTION TO ENIOIN PUBLIC 1 . mscnosumz or TRADE - DLA Piw LLP (US) 5 Cas, 10.2.0446g.g SEA 701 Filth Avenue, Suite 7000 I Seattle, WA 98104-7044 Tel: 206.839.4800 SF-o01a2 PRR-2011-00450 I FILED - I I SUPERIOR COURT I I THURSTON COUNTY. WA 2 EXPEDITE AH I hearin I 3 ii sam .1. scum. I Date: July 1,2011 gf Judge/Calendar: Christine A. Pomeroy . . . .. .. - . - . - .. .. - . . . ..ITHE SUPERIOR COURT OF THE STATE OF WASHINGTON rz I --1 ei 8 I FOR THE COUNTY OF THURSTON I 9 TRANSCORE, LP, a Delaware Corporation, I and TRANSCORE LLC, a Delaware - - 10 I eorpmaen, Ne. 11-2-01066-7 I [Clerk's Action Required] 11 I Pmam, I ORDER FOR 12 . vs. INJUNCTION . - 13 WASHINGTON STATE DEPARTMENT OF I 14 TRANSPORTATION, I Defendant. I l_5 16 I THIS CAME BEFORE this court on plaintiffs TransCore, LP and 17 TransCore ITS, LLC's (hereinafter collectively called "TransC0re") notice of presentrnent I 18 for entry of order _for permanent injunction pursuant to this court's June order of I 19 I preliminary injunction. The court being fully advised and the premises hereby finds and 20 concludes that; 21 1. TransCore, LP is a Delaware corporation doing business in the state of I 22 . Washington. II I 23 2. TransCore LLC is a Delaware corporation doing business in the state of 24 I Washington. 25. 3. On August 3, 2006 defendant Washington State Department of Transportation I 26 I hereinafter WSDOT issued requests for proposal ACQ-2006-0701-RFP to obtain bids to - ORDER FOR PERMANENT INJUNCTION - 1 . dm FIM I sr=-com . PRR-2011-00450 I 1 supply, install and maintain a high occupancy toll Lane Electronic Toll Systems 2 yi Supply on SR167. TransCore, LP timely submitted a proposal in response to the RFP. 3 4. In evaluation of its proposal, WSDOT met with TransCore and evaluated 4 TransC0re's proposal against other submitters. Subsequently, WSDOT awarded the work 5 tmder the RFP not to TransCore, but to ETCC. 5 5. On May 4, 2011, WSDOT notified.TransCore, LP and TransCore ITS, LLC a 7 i that a request for public disclosure of ransCore's proposal on ACQ-2006-0701--RFP, 3 including its pricing and the scoring by WSDOT was made to WSDOT under 9 i RCW 42.56.540 by Keith Meador, an attorney in Atlanta, Georgia. 10 i 6. Both TransCore, LP and TransCore ITS, LLC have proposed and continue to 11 fi propose on projects for the Washington State Department of Transportation. I i 12 7. On May 12, 2011 TransCore ITS, LLC filed a complaint for relief 13 il to prevent WSDOT's disclosure of TransCore's trade secrets contained in its proposal to 14 ACQ-2006-0701-RFP. i i 15 8. TransCore ITS, LLC and WSDOT stipulated to a temporary restraining order I 16 I to refrain from disclos1u?e ofthe docimients requested by Mr. Meador which this court 17 granted on May 23, 2001. WSDOT stipulated and agreed to an order granting leave to 18 amend for injunctive relief adding TransCore, LP as a plaintiff in this matter and the court 19 granted the Stipulation for Amended Complaint on May 26, 2011. 20 9. On June 3, 2011 this cotut entered an Order on Preliminary Injunction which 21 provided that should no party intervene in this matter before June 30, 2011 that this court 22 would enter a permanent inunction permanently enjoining WSDOT from disclosing or 23 allowing public inspection or copying ofthe- records identified in paragraphs of the 24 Order of Preliminary Iruunction. 25 i 10. Plaintiffs TransCore have well-grounded fears based on WSDOT's indication 5 26 that TransCore's response to technical proposals and WSDOT's scoring and evaluation ORDER FOR PERMANENT INJUNCTION - 2 I mamm FN mum PRR-2011-00450 1 documents would be subject to public disclosure unless the Order of Preliminary Inj unction I 2 I is made permanent. Absent a permanent injunction, WSDOT would likely release the 3 records. Such release would render the judgment sought by TransCore in this lawsuit 4 I ineffectual and irreparably damage TransCore. 5 ll. The court has reviewed the tile in this iile and no party is intervened in this 7 12. Defendant WSDOT is not objecting to the form of this order. I 3 NOW THEREFORE, this court orders as follows: 9 Defendant is permanently enjoined nom disclosing or allowing public inspection or 10 copying of: . 11 a) All infomation contained in the Technical Proposal submitted by 12 TransCore in Sections 4.1 -4.4 and consisting of pages numbered 4-1 13 through 4-70. 14 b) Appendix in its totality regarding linancial information on subcontracto 15 I VESystems. 16 c) Any scoring or "evaluation doc1unents" in WSDOT's custody or control 17 regarding the scoring of TransCore's proposal for SR 167 on ACQ-2006- 18 I 0701-RFP as against other proposers. i 19 . d) The Executive Summary of TransCore's response to the RFP, pages 1-4, 2Q I I I I which contain drawings as to systems interface and descriptions of those 21 interfaces. . 22 e) Section "2.l Financial and Business Information," pages 2-1 of 23 TransCore's response to proposal and all information including tax 24 information contained therein. 25 t) Section "2.1 Financial and Business Information? and page 2-1 as it 26 contains tax infomation. ORDER FOR INJUNCTION - 3 PF Fax 23.2920460 i SF-001as PRR-2011-00450 1 g) 2 financial information regarding subcontractor VESys?ems._ . . 3 h) Section Financial and Business Info1mation," sections 2.Section Vendor section 3.values of projects Tra?sCore1isted should 9 - be excisedandnotdisclosedss they appear onpages 3-8`to 3.3. 10 k) Section 3.3 and3.5 1] 0 12 Done inopencourtthisi_dayofJ111y, 2011. 14 2011. 15 I 16 17. A.PO it'! Presmted 18 by _:uved: 0 0 19 SCHWABE, OFFICE nc ENERAL, DEPAR 2063 LP Sc?ttL? *o 1 amey ainti s, We Artomayjbr Dsf?ndum; Washington 23 I cmd]? 0reH1SORDERFOR INJUNCTION - 4 I i SF-00186 PRR-2011-00450 1 HONORABLE RICHARD D. HICKS gang 2616 THE SUPERIOR COURT OF STATE OF WASHINGTON IN AND FOR COUNTY OF THURSTON 8 . EX PARTE 9 TRANSCORE ITS, LLC, a Delaware corporation, No.: 10-2-01082-1 1 0 P1aintiH`, ORDER FOR CTION 1 1 . - . V. STATE OF WASHINGTON 13 DEPARTIVIENT OF TRANSPORTATION, - 14 Defendant. -. . 15 . THIS MATTER is before this Court on Plaintiff TransCore ITS, 16 . 17 ("TransCore") pr entment for entry of an Order for Permanent Injimction pursuant to this 18 Cou1?t's May 28, 2010-Order for Preliminary Injunction. The Court, ?being ihlly advised in 19 the premises, hereby and- concludes that: 20 1. TransCore' is a Delaware corporation doing business in the State of 21 Washington. . 22 . 2. On November 18, 2009, Defendant Washington State Department of 23 - 24 Transportation issued Request for Proposal ACQ-2009-1 118- 25 RF QQ for Transponder Based Tolling Technology andProcurement. 26 ORDER FOR PERMANENT INIUNCTION Page] PC 1601 Fini Avuun, Su1?s?n0 Sith, wllhilfl SF-00187 PRR-2011-00450 1 TransCore submitted a timely proposal in response to the RFQQ (the 2 "Proposal"). 3 3. On April 29, 2010, WSDOT notified TransCore that Peter Samuel of` Toll 4 Road News of Fredrick, MD filed a public records request seeking all 5 6 proposals submitted in response to the RF QQ, including TransCore's Proposal. 7 4. On May 14, 2010, TransCore filed a Complaint for Inj unctive Relief to 9 I prevent WSDOT's disclosure of TransCore's trade secrets. 10 5. TransCore and WSDOT stipulated to a temporary restraining order to renain 11 Hom disclosure, upon which this Court granted such order on May 19, 2010. 6. On May 28, 2010, the Court entered an Order for Pre1irr1inary Injunction and 13 14 provided that should no party intervene in this matter before June 25, 2010, 15 this Court would enter an Order for Permanent Injunction. 16 7. No has intervened in this matter, and June 25, 2010 has passed. . 17 Defendant has not objected to the form of this.Order, and accor ly ursuant . 18 to the terms of its May 28?' order, the preliminary injunction should be made permanent. I 19 - 2 NOW, THEREFORE, the Court hereby ORDERS as follows: 20 I . 1. The Defendant is PERMANENTLY ENJOINED from disclosing or allowing 2 1 22 public inspection or copying of: 23 a. Plaintiffs Proposal in response to WSDOT's Request for Proposal 24 identified as and 25 b. Any scoring or "evaluation documents" in WSDOT's custody or 26 control regarding ACQ-2009-1 1 18-RF QQ. ORDER FOR PERMANENT INJUNCTION Page 2 PC 1601 Filth Avena; uito2300 Semin, Wuhirgmn 9ll0l-16ll TISIIQMMZ 206].921930 sF-00188 PRR-2011-00450 - 1 Dom; IN OPEN COURT this day tt. The Honorable Ri 5 Presented by: RICHARD D. HICKS 6 BULLIVANT HOUs AILEY PC I I4 eph J. . aus, WSB -- I 2063 9 Attorneys Plaintt - 10 TransCore ITS, LLC 11 Approved as to Form, Notice of Presentation Waived: I ROB II 12 Attorney Gen Scott 0 WSBA No. 19248 15 Attorneys for Defendant . - - State of Washington . I6 Department of Transportation I7 - I 18 l2622367ORDER FOR PERMANENT INJUNCTION Page -3 PC I mr mama I I SF-00189 PRR-2011-00450 1 THE HONORABLE PAULA CASEY 2 EXPEDITE wa 9 No Hearing set 1- 3 Hearing is _set 2 - . Date: 06/04/10 I JUN 4 I 4 T1II1CI 9300 A.M. 1 Judge/Calendar: Casev - fiSUPERIOR COURT OF THE STATE OF WASHINGTON 8 IN AND FOR THE COUNTY OF THURSTON 9 TRANSCORE ITS, LLC, a Delaware . corporation, No.: 10-2-00865-6 . . 10 . 1 Plaintiff, ORDER FOR PERMANENT INJUNCTION STATE OF WASHINGTON 13 DEPARTMENT OF TRANSPORTATION, - 14 Defendant. . . 15 6 TI-HS MATTER came before this Court on Plaintiff TransCore LLC's - 1 . . 17 ("TransCore") presentment for entry of an Order for Permanent Injunction pursuant to this 18 Court's May 7, 2010 Order for Preliminary Injunction. The Court, being fully advised in the 19 premises, hereby finds and concludes that: . 20 1. TransCore is a Delaware corporation doing business in the State of 21 Washington. 22 2. On Jtme 15, 2009, Defendant Washington State Department of Transportation 23 24 issued Request for Proposal ACQ-2009-0515-RFP to Establish 25 and Operate a Statewide Customer Service Center for Toll Operations in King 26 ORDER FOR PERMANENT INJUNCTION Page 1 PC 1601 Fikh Avluu, Suim EDU Sends, Wuhinpnn 9I101-1618 - Telephone: 206.191830 SF-00190 PRR-201 1-00450 1 County, Washington RF TransCore submitted a timely proposal in - 2 response to the_ RFP (the "Proposal"). 3 3. On April 16, 2010, WSOOT notified TransCore that Bill Rapp of ACS 4 Transportation Systems Services, Inc. tiled a public records request seeking all proposals submitted in response to the RFP, including TransCore's 7 Proposal. 8 4. On February 23, 2010, WSDOT notified TransCore that ACS Transportation 9 - filed a public records request on I anuary 19, 2010 seeking all proposals 10 submitted in response to the Original RFP, all WSDOT scoring and evaluation 11 doctunents, and all documents related to WSDOT's determination to cancel 12 the Original RFP. i . 5. On April 27, 2010, TransCore filed a Complaint for Irrjunctive Relief to 15 prevent WSDOT's disclosure of TransCore's trade secrets. 16 6. TransCore and WSDOT stipulated to a temporary restraining order to refrain 17 from disclosure, upon which this Court granted such order on April 28, 2010. 18 It is likely that-TransCore will prevail on the merits of its claim that . 19 earamination or public disclosure of TransCore's Proposal would not be in the Aj? public. interest and would substantially and irreparably damage TransCore. 22 8. Plaintiff has a well-gronmded fear based on WSDOT's indications that 23 TransCore's Proposal, and WSDOT's scoring and evaluation documents will 24 be subject to public disclosure unless an injunction is entered prohibiting their . 25 release. Absent a permanent injunction, WSDOT would likely release the 26 ORDER FOR PERMANENT INIUNCTION Page 2 PC - sr=-00191 PRR-2011-00450 1 records. Such release would render the judgment sought by TransCore in this 2 lawsuit ineffectual and would irreparably damage TransC0re2010, this Court entered an Order for Preliminary Injunction and 4 provided that should no party intervene in this matter before June 4, 2010, this 5 6 Coiut would enter an Order for Permanent Injunction. 7 10. No party has intervened in_ this matter. - 8 _11. Defendant has not objected to the form of this Order. . 9 Now, THEREFORE, the Court hereby ORDERS as follows: 10 1. The Defendant is permanently enjoined from disclosing or allowing ublic . 1 1 . . . GOpy1I1g Of! 12 a. Plaintiffs Proposal in response to WSDOT's Request for Proposal 13 - - - . 14 identified "as and 15 b. Any scoring br "evaluation documents" in WSDOT's custody or 16 control regarding ACQ-2009-0515-RFP. 17 DONEINOPEN COURT this day 0f 2010. 1 8 19 . e. onorable Paula Case ORDER FOR PERMANENT INJUNCTION Page 3 PC l60l Fikh Avenue, Suit; 7300 Salla, Wnhingmn 9ll?l-1618 206.292.I930 SF-00192 PRR-201 1-00450 1 Presented by: 2 BULLIVANT HOUSE Joseph J. us, WSBA 1 063 5 Attomeys Plaintiff TransCore ITS, LLC 6 . Approved as to Form, Notice of Presentation Waived: 7 ROB MCKENNA 8 Attorney General -- By 10 Scott Lockwood, WSBA No. 19248 . - 11 Attomeys for Defendant . State of Washington 12 Department of Transportation 13 14 12566204ORDER FOR PERMANENT INJUNCTION Page 4 PC umn . . Sade, 9I10l-1618 Tnlaphomz 2061921930 SF-00193 PRR-201 1-00450 IJEPAULA CASEY 2 EXPEDITE El No Hearing set 3 ~/Hearing is set APR 0 9 Date: 04/16/10 4 Time: 9:00 A.M. PERJQR COUH 5 Judge/Calendar: Casev . 6 7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF THURSTON 8 9 irs, LLC, a Daawm ile; 10 corporation, No.: 10-2-00432-4 1 1 Plaintiff`, ORDER FOR PERMANENT IN JUN CTION 12 STATE OF WASI--IINGTON 13 DEPARTMENT OF TRANSPORTATION, 14 Defendant. 15 TI-HS MATTER came before this Court on Plaintiff TransCore ITS, LLC's . 16 17 ("TransCore") presentment for entry of an Order for Permanent Injunction pursuant to this 18 Court's March 12, 2010 Order for Preliminary Injunction. The Court, being fully advisedin 19 the premises, hereby and concludes that: 20 1. TransCore is a Delaware corporation doing business in the State of 21 Washington. 22 2. On June 15, 2009, Defendant Washington State Department of Transportation 23 24 issued Request for Proposal ACQ-2009-0530-RFP to Supply, Install, and 25 Maintain a Toll Collection System for State Route 520 (the "Original TransCore 26 submitted a timely proposal in response to the Original RFP (the "Proposal"). ORDER FOR PERMANENT INJUNCTION Page 1 PC il 1so1mM_ suamzoc GRIGINEL - sr=-00194 PRR-2011-oo4so 1 3. On September 20, 2009, TransCore made a presentation about its Proposal to 2 WSDOT, using PowerPoint slides. The PowerPoint slides reveal details of TransCore's . 3 Proposal that are not generally known to TransCore's competitors. 4 4. On November 17, 2009, WSDOT awarded the project to another competitor, however on November 25, 2009, TransCore Bled a Notice of Protest due to WSDOT's I 7 failure to comply with RCW 39.04.350. 8 5. On December 10, 2009, WSDOT cancelled its Original RFP. WSDOT has 9 issued a new RFP (the "New for the same or substantially the same goods and 10 services sought in the Original RFP. Responses to the New RFP are due March 11, 2010. 11 6. On February 12, 2010, WSDOT notified TransCore that Paul Michel 12 Associates tiled a public records request on February 3, 2010 seeking all proposals submitted 1; in response to the RFP, all WSDOT scoring and evaluation documents, and all 15 documents related to WSDOT's determination to cancel the Original RFP. 16 7. On February 25, 2010, TransCore tiled a Complaint for Injunctive Relief to 17 prevent WSDOT's disclosure of TransCore's.trade secrets. 18 TransCore and WSDOT stipulated to a temporary restraining order to refrain 19 Hom disclosure, upon which this Court granted such order on February 26, 2010. ig 9. Plaintiff has a well-grounded fear based on WSDOT's indications that 22 TransCore's Proposal, the September 20, 2009 PowerPoint presentation, and WSDOT's 23 scoring and evaluation documents will be subject to public disclosure unless an injunction is 24 entered prohibiting their release. Absent a permanent injunction, WSDOT would likely 25 release the records. Such release would render the judgment sought by TransCore in this 26 lawsuit ineffectual and would irreparably damage TransCore. ORDER FOR PERMANENT INJUNCTION Page 2 PC 10. On March 12, 2010, this Court entered an Order for Preliminaxy Injunction 2 and provided that should no party intervene in this matter before April 9, 2010, this Court 3 would enter an Order for Permanent Injunction. I ll. No party has intervened in this matter. . resentaH`on. . 6 . 7 Defendant has not objected to the form of this Order. 8 NOW, THEREFORE, the Court hereby ORDERS as follows: 9 . 1. The Defendant is permanently enjoined from disclosing or allowing public 10 inspection or copying of: 11 a. Plaintiffs Proposal in response to WSDOT's Request for Proposal 1 2 identified as 3 14 b. Plaintiffs PowerPoint presentation concerning its Proposal that 15 Plaintiff made to WSDOT on September 20, 2009; and 15 c. Any scoring or "evaluation documents" in WSDOT's custody or 17 control regarding ACQ-2009-0530-REP. 18 DONE IN OPEN COURT this day of 2010. 1 9 20 21 Honorable Paula Casey 22 23 24 25 . 26 ORDER FOR PERMANENT INJUNCTION Page 3 PC l60I Fikh Avenue, Suite 2300 Semis, Washington Telephone: 2061918930 SF-00196 PRR-2011-00450 1 Presented by: 2 BULLIVANT HOUSER BAILEY PC 3 4 By - Joseph J. Strau SBA #12 63 . 5 Attomeys for TransCore LLC . 6 Approved as to Form, Notic of Presentation Waived: 7 ROB MCKENNA 8 Attomey General 9 By 10 Scott Lockwood, WSBA No. 19248 11 Attomeys for Defendant State of Washington 12 Department of Transportation 13 . 14 12451033ORDER FOR PERMANENT INJUNCTION Page 4 PC ISM Fihh Avenue, Sui0o2300 Seuile, Washington 206.292830 SF-00197 PRR-201 1-00450 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II MICHAEL GENDLER, No. 39333-6-11 Appellant, v. JOHN R. BATISTE, WASHINGTON STATE PUBLISHED OPINION PARTROL, Res ondent. Penoyar, C.J. -- The Washington State Patrol (WSP) appeals from a summary judgment order requiring it to disclose historical bicycle accident records occurring on Seattle's Montlake Bridge. The WSP claims that federal law, 23 U.S.C. 409 (2005), prohibits it Hom disclosing the records to Michael Gendler unless he agrees not to use the information in litigation against the State. Because RCW 46.52.060 imposes a duty on the WSP to create and provide such public records, and because the federal privilege applies only to the Washington State Department of Transportation (WSDOT) not the WSP, we affirm. We also award Gendler his attomey fees and costs for this appeal. Facts On October 28, 2007, Gendler was crossing the Montlake Bridge in Seattle when his bicycle ti1?e became wedged in the bridge grating, tossing Gendler &om his bicycle onto the bridge deck. He suffered a serious spinal injury, leaving him with quadriplegia, unable to live independently, and unable to work fulltime in his law practice. After learning that other bicyclists had had similar debilitating accidents on the Montlake Bridge, Gendler suspected that the roadway had been unsafe for cyclists since 1999 when the sF-0019:; PRR-2011-00450 39333-6-11 State replaced the bridge decking. He sought records of other bicycle accidents from Kip Johnson, the WSP Public Records employee. olmson explained that she could provide records to Gendler if he identified the person involved in tl1e collision and the collision date. She explained that WSP does not store accident reports by location and thus she could not provide l1im with such a list. Gendler also learned that he could obtain specific records from the WSP website, but only if he certified that he would not use the records in a lawsuit against the State of Washington} Gendler acknowledges that he may sue the State if the reports show that the State was on notice for years that the bridge deck was unsafe for bicyclists. He further explains tl1at he does not want to waive his right to use public records in a civil suit to hold the State accountable for its negligence nor does he want to waive his right as a public citizen to be fully informed about the history of the bridge and the govemment agencies' conduct toward keeping the roadway reasonably safe. This current action stems from Gendler's complaint against the WSP for violating the Public Records Act (PRA), chapter 46.52 RCW, claiming that these are public records and the WSP must provide them without requiring him to certify that he would not use them against the State. He seeks an order requiring the WSP to provide the records, attorney fees, costs, and fmes. The trial court allowed the WSDOT to intervene as it now compiles the traffic data that WSP provides to it and only WSDOT can produce an historic list of traffic accidents based on a The form, "Request for Collision Data DOT Form 780-032 requires the requesting party to agree to the following: "1 hereby &ff11'II1 tl1at1 am not requesting this collision data for use in any current, pending or anticipated litigation against state, tribal or local govemment involving a collision at the location(s) mentioned in the data.; Clerk's Papers (CP) at 27. SF-00199 PRR-2011-00450 39333-6-11 physical location. On cross-motions for summary judgment, the trial court granted relief to Gendler after fmding that the WSP had a statutory duty under RCW 46.52.060 to provide the requested information notwithstanding 23 U.S.C. 409. Additionally, the trial court awarded Gendler his attorney fees, costs, and penalties, totaling $140,798.79. The question before us ir1 this appeal is whether collision records collected and compiled by the WSDOT in compliance with the "Federal 1-lighway Safety Act" are privileged under 23 U.S.C. 409 such that the WSP need not provide these records despite its duty under RCW 46.52.060 to "iile, tabulate, and analyze all accident reports and to publish annually . . . the number of accidents, the location, the frequency, . . . and the circumstances thereof" The WSP also asserts that Gendler's use of the PRA to obtain a ruling on an evidentiary rule his claim to attomey fees, costs, and penalties. ANALYSIS 1. Federal Privilege A. Background ln 1966, Congress passed 23 U.S.C. 402, the highway safety programs, which created national highway safety standards, required the states to design programs to implement these standards, and provided federal grants to help support state programs. 23 U.S.C. 402(a), ln 1968, the United States Department of Transportation required states to identify and correct high-collision locations by collecting trafic records that collision locations, collision types, injury types, and enviromnental conditions. 33 Fed. Reg. 16560-64 (Nov. 14, 1968). ln 1973, Congress passed 23 U.S.C. 152, the Hazard Elimination Program. This program funded improvements on non-federal roads, requiring a greater collection and 3 SF-00200 PRR-2011-00450 39333-6-11 compilation of data to identity locations and priorities for improvements. Specifically, it required that states plan highway safety improvements "on the basis of crash experience, [or] crash potential" and required states to collect and maintain a record of highway collision data. 23 C.F.R. ln 1987, Congress passed 23 U.S.C. 409 to protect the states from tort liability engendered by the increased self-reporting of hazardous collision data. Amended twice to further broaden protections for states, 409 now provides: Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway- highway crossings, pursuant to sections 130, 144, and 148 of this title or for tl1e purposes of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted ir1to evidence ir1 a Federal or State court proceeding or considered for other purposes ir1 any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data. The United State Supreme Court explained the scope of this provision in Pierce County v. Guillen, 537 U.S. 129, 145-46, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003): The interpretation proposed by the Govermnent, however, suffers neither of these faults. lt gives effect to the 1995 amendment by making clear that 409 protects not just the infomiation an agency generates, compiles, for 152 purposes, but also any information that an agency collects from other sources for 152 purposes. And, it also takes a narrower view of the privilege by making it inapplicable to information compiled or collected for purposes unrelated to 152 and held by agencies that are not pursuing 152 objectives. We therefore adopt this interpretation. Our conclusion is reinforced by HIS history of the 1995 amendment. As we have already noted, the phrase "or collected" was added to 409 to address confusion among the lower courts about the proper scope of 409 and to overcome judicial reluctance to protect under 409 raw data collected for 152 purposes By amending the statute, Congress wished to make clear that 152 was not intended to be an effort-free tool in litigation against state and local 4 SF-00201 PRR-2011-00450 39333-6-I1 governments. The WSP argues that its police collision reports (PTCR) fall under 409 protections because it provides and WSDOT collects the data for a 23 U.S.C. 152 purpose, namely, compliance with the "Hazard Elimination Program." lt notes that the Federal Highway Administration (FHA) issued a memorandum after Guillen, explaining that even if the collision reports are stored in an integrated database used by multiple agencies for different purposes), the collision data remains protected under 409 because it is, at least in part, there for a 152 purpose. Finally, the WSP argues, citing Guillen, that the data is subject to unbridled disclosure only when it is collected solely for law enforcement purposes and is held by a law enforcement agency. The WSP explains that the PTCR was developed specifically for 152 compliance, that WSDOT must demonstrate its compliance to the FHA, and that it is undisputed that the WSDOT database was developed specifically for showing that compliance. B. RCW 46.52.060 ln 1937, our state legislature passed the "Washington Motor Vehicle Act." Laws of 193 7, ch. 189. Section 135 of this comprehensive legislation requires law enforcement ofncers to prepare accident reports on state highways. Section 138 imposes a duty on the WSP Chief? lt shall be the duty of the chief of the Washington state patrol to file, tabulate and analyze all accident reports and to publish annually, immediately foHowing the close of each calendar year, and during the course of the calendar year, statistical information based thereon showing the number of accidents, the location, the irequency and circumstances thereof and other statistical information which may prove of assistance ir1 detemiining the cause of vehicular accidents. Such accident reports and analysis or reports thereof shall be available to the directors of the departments of highways, licenses, public service or their duly authorized representatives, for further tabulation and analysis for pertinent data relating to the regulation of highway traffic, highway construction, vehicle 5 sF-00202 PRR-2011-00450 39333-6-11 operators and aH other purposes, and to publish information so derived as may be deemed of publication value. RCW 46.52.060 (Laws of 1937, ch. 189, 138). ln fulfilling this duty, for many years, the WSP and other agencies provided accident histories at particular locations, photographs, complaints, counts, road maintenance records, and other information. Until 2003, the WSP could provide data based on location, but its ability to do so was limited.2 ln 2003, the Supreme Court decided Guillen, which held in part, that 409 "does not protect information that was originally compiled or collected for purposes l1I1I'Cl3tCd to 152 and that is currently held by the agencies that compiled or collected it, even if the information was at some point 'coHected' by another agency for 152 purposes." 537 U.S. at 144. 2 Kip Johnson explained in her deposition: We entered all this infomiation into a mainframe, and from that mainframe we got printed reports on city streets and country roads. We did--1 think state routes might have been just too much for our system, so we never did do that. also had a system where we downloaded tl1e information to them that--we got this information back ii?om them on the locations and the diagram data, and we entered that, and then they downloaded it into their system, and we left aH that up to them. We did county roads and city streets, and we had sort of like canned reports, printed reports that would come out that would--like for country roads it would have all these five-digit road log numbers, so you had to know the mileposts and the five-digit road log number, and, as far as 1 know, no average person knows that for the country roads. Cities would have been a little bit easier because 1 would have had a city street name and then a reference, but 1 would have to look through all the reports because even the data entry was not consistently uniform. So 1 would roll out a big long bunch of paper reports and try to find every reference to that particular street 1 could, and that was time-consuming. Now a computer does that. CP at 305. 6 sF-0020s PRR-2011-00450 39333-6-11 Shortly after the Guillen decision, the WSDOT and the WSP entered into a memorandum of understanding (MOU) that as of July 1, 2003, WSDOT would maintain all accident reports in its database? While the WSP gave the WSDOT a "nonexclusive, royalty-free, irrevocable license to publish, translate, reproduce, deliver, perform, display, and dispose of copies of the scanned images or PT CR and VCR/Citizen Reports," "the reports and scanned images of those reports are the property of Clerk's Papers (CP) at 206. The MOU also provided: All public disclosure requests for copies of any PT CR must be submitted in writing on DOT Form 780-030 "Request for Copy of Collision Report" to the WSDOT's Collision Records Request Section, located in the Transportation Data Of`fice in Olympia. Searches for must be based on an involved person's name or a report number. Any request for multiple reports based solely on location will be treated as a request for collision data, and the request will be referred to the WSDOT's Collision Data and Analysis Branch (see below). . . . The WSP public disclosure policy will control the release of all PT CR and VCR/Citizen Reports. The WSDOT public disclosure policy will control the release of all collision data. CP at 208, 209, 212. C. Public Records Act ln 1973, the people of this State adopted the "Public Disclosure Act" (PDA) through initiative} The public records portion of this Act required all state and local agencies to disclose any public record upon request, unless it fell within an enumerated exception. Former RCW 3 The WSP would scan the documents into the system, send them to the WSDOT, and destroy the originals. See Laws of 1973, ch.1 (Initiative 276, then codified as chapter 42.17 RCW). 7 SF-00204 PRR-2011-00450 39333-6-11 42.17 .260(1) (2005). Now codified in chapter 42.56 RCW, the PRA's purpose is set out in RCW 42.56.030: The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so tl1at they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest wiH be fully protected. ln the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govem. RCW 42.56.030. The stated purpose of the Public Records Act is nothing less than the preservation ofthe most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions. RCW 42.17.251. Without tools such as the Public Records Act, govermnent of the people, by the people, for the people, risks becoming govemment of the people, by the bureaucrats, for the special interests. hr the famous words of James Madison, popular Govermnent, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both." Letter to W.T. Barry, Aug. 4, 1822, 9 The Writings of James Madison 103 (Gaillard Hunt, ed. 1910). Progressive Animal Weyare Soc. v. Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994). The purpose of the PRA is to provide "full access to information concerning the conduct of govemment on every level . . . as a fundamental and necessary precondition to the sound governance of a society." RCW The PRA, RCW 42.56.001-.902 (formerly codified as RCW 42.17.250-.348 in the PDA) requires all state and local agencies to disclose any public record upon request, unless it falls within certain specific enumerated exemptions. See Sperr v. City of Spokane, 123 Wn. App. 132, 136, 96 P.3d 1012 (2004); King County v. Sheehan, 114 Wn. App. 325, 335, 57 P.3d 307 (2002); RCW The requested record must be 8 SF-00205 PRR-2011-00450 39333-6-11 made available "for public inspection and copying." RCW The Washington State Patrol is an "agency" subject to t11e provisions of the act. RCW 42.l7.020(2) (def`ming agency to include any state office or department) (Laws of 2005, ch. 445, see also RCW 42.56.010 (referencing RCW 42.17.020) (Laws of 2005, ch. 274, 101). Public records subject to inspection under the act include (1) any writings (2) that contain infommation related to the "conduct of govemment or the performance of any govemmental or proprietary function" and (3) that are "prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." RCW former RCW An agency has no duty under the PRA, however, to create or produce a record that does not exist at the time the request is made. Sperr, 123 Wn. App. at 136-37; Smith v. Okanogan County, 100 Wn. App. 7, 13-14, 994 P.2d 857 (2000). Further a request under the PRA must be for an "ident1]iable public record," see Hangartner v. City of Seattle, 151 Wn.2d 439, 447-48, 90 P.3d 26 (2004) (quoting former RCW 42.17.270), and a mere request for information does not so qualify. Wood v. Lowe, 102 Wn. App. 872, 879, 10 P.3d 494 (2000); Bonamy v. City of Seattle, 92 Wn. App. 403, 410-12, 960 P.2d 447 (1998). Moreover, although there is no official fomiat for a valid PRA request, "a party seeking documents must, at a minimum, provide notice that the request is made pursuant to the and identify the documents with reasonable clarity to allow the agency to locate them." Hangartner, 151 Wn.2d at 447. Gendler argues that the WSP has done exactly what these statutes prohibit; not produce records in its control that it has an obligation to produce. He points to the deposition testimony of Daniel Parsons, the Cl1ief lnformation Officer of the WSP, who testified that the 9 SF-00206 PRR-2011-00450 39333-6-I1 WSP could develop a database to produce historical collection records based on location. 1 SF-00207 PRR-201 1-00450 39333-6-11 D. Analysis We hold that the trial court acted properly when it ordered the WSP "to provide copies of these records on request without the limitation offered by Defendant."' CP at 322. Although the WSDOT may use the PTCR records to comply with 152, the WSP does not. The WSP has an independent statutory obligation to collect traffic collision reports. Apparently, it stopped doing this in 2003, but delegating its duty to maintain the records to another agency does not shield WSP from its obligations under the PRA. The Supreme Court in Guillen made clear that information gathered by law enforcement agencies for law enforcement purposes is not protected under 409. What complicates the current situation is that the WSP through the MOU makes the WSDOT the custodian of its records and has tl1e WSDOT compile and analyze the data. lt was for this reason that Gendler sued the WSP and not the WSDOT. His position has been from the outset that the WSP has a duty, independent of WSDOT's 152 obligations, to collect data and publish reports "showing the number of accidents, the location, the frequency, . . . and the circumstances thereof" RCW 46.52.060. As Gendler notes, administrative inconvenience does not relieve an agency of its duty to comply with the PRA. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 130, 580 P.2d 246 (1978) (cost and excessive disruption to department of assessments did not outweigh the public benefit of disclosure). ln its reply brief the State acknowledges that RCW 46.52.060 requires the WSP to report collisions by location, which it claims its reports now provide by naming the county where the 5 Gendler's request was for "[a]ll police reports relating to collisions involving bicycles on t11e Montlake Bridge ir1 Seattle (SR 513)." CP at SF-0020s PRR-2011-00450 39333-6-11 accident occurred. lt argues that to accept Gendler's argument would be to require the WSP to produce reports in greater detail than is necessary for law enforcement purposes. lt argues that even though it is technologically possible for it to do so, it should not be required to do so because that is beyond what it needs for law enforcement purposes. The only purpose for building such a database, it argues, would be to circumvent 409 for litigation purposes. The State goes on to argue, however, that the PT CRs themselves are privileged because the WSDOT has custody of the records and it is a 152 agency. 1t then misconstrues Guillen to apply privilege when the data has been collected for both 152 and non-? 152 purposes: Under this interpretation, an accident report collected only for law enforcement purposes and held by the county sheriff would not be protected under 409 in the hands of the county sheriff even though that same report would be protected in the hands of the Public Works Department, so long as the department Erst obtained the report for 152 purposes. Guillen, 537 U.S. at 144. What the State fails to explain, however, is how the county sheriff in this example is any different from the WSP or how the Public Works Department is any different from the WSDOT. The PT CR report, in the hands of the WSP, would not be privileged as it would be ir1 WSDOT's hands because each agency uses that report for different purposes. The State then argues that the WSP does not use many of the categories of information in the PTCR and that information is collected only for tl1e WSDOT, which uses it for its compliance with 152. The trial court found little merit to this claim, discounting it because law enforcement still complete the form for WSP statutory purposes. Gendler argues that this State revised the PT CR ir1 1968, yet Congress did not enact 152 until 1973 so the State's claim is flawed. Gendler also reasons that regardless of the infomiation public record filled out by a law enforcement as part of his duties under state law. 12 SF-00209 PRR-2011-00450 39333-6-11 The WSP argues that the legislature has never defined "location" as that term is used in RCW 46.52.060 ar1d it claims that its annual reports, which show accident data by county, fulfill its statutory duty. We disagree. As we set out above, RCW 46.52.060 requires the WSP Chief to "file, tabulate, and analyze all accident reports." lt also requires the WSP to produce "statistical infommation based thereon showing the number of accidents, the location, the frequency, . . . and the circumstances thereof, and other statistical infommation which may prove of assistance ir1 detemmining the cause of vehicular accidents." RCW 46.52.060. Certainly, there is one overridir1g purpose here and that is to improve the safety of our roadways. A report indicating only that a certain percentage of accidents occurred in King or Pierce County would serve no purpose other than an academic one. 1t would not and does not assist the WSP on where and when to assign troopers and it would not assist the WSP or anyone else in analyzing the causes of vehicular accidents, which is the express purpose that animates the obligation RCW 46.52.060 imposes on the WSP. While we agree that the WSDOT need not provide unbridled access to collision data, the WSP must produce the reports in compliance with its independent statutory obligation and as such must disclose those reports when requested under the PRA. 11. Purpose The WSP also argues that the trial court erred ir1 imposing costs, attomey fees, and penalties because Gendler's purpose ir1 filing his complaint was not to obtair1 public records but to get a ruling on the interplay of 409 and the PRA. The WSP relies on Daines v. Spokane County, 111 Wn. App. 342, 349, 44 P.3d 909 (2002), which held that a plaintiff "must show that the action was necessary to obtain the information in the first place." 13 SF-00210 PRR-2011-00450 39333-6-11 The State explains that Gendler did not have to file a PRA lawsuit to obtain the collision records as the records were available and the WSP routinely provides them upon request. The State reasons that Gendler's PRA lawsuit instead was solely to resolve an evidentiary dispute over whether the collision records were within the 409 privilege forbidding their use in actions for damages. The State ignores, however, that Gendler could not obtain the records from the WSP without agreeing that he would not use them in litigation against the State. Gendler's argument throughout has been that the WSP must produce the records under its duty imposed by RCW 46.52.060. Whether the State had an obligation to produce the collision records under the PRA without such a caveat is the crux of this matter and resolving that question involves the scope of the PRA. Gendler had to resort to this lawsuit in order to obtain the public records he wanted without a 409 limitation. The trial court properly awarded costs, attorney fees, and penalties for this remedial action. 111. Attorney Fees Gendler requests an award of attomey fees as the prevailing party on appeal. RCW 42.56.550(4) allows such fees and includes attomey fees on appeal. Progressive Animal Welfare, 125 Wn.2d at 271. 1-lis request is appropriate and upon his compliance with RAP 18.1, a commissioner of this court will detemmine the proper amount ofthe award. Aifrrmed. Penoyar, C.J. We concur: 14 SF-00211 PRR-2011-00450 3 933 3 -6-I1 Worswick, J. J. I 5 SF-00212 PRR-2011-00450 SUPERIOR COURT OF WASHINGTON I THURSTON COUNTY - - NORTHWEST GAS . A Washington corporation, et. al. -- - No. 07-2-00321-2. et. al. Plaintiffs vs. MEMORANDUM OPINION DENYING INJUNCTION WASHINGTON UTILITIES AND AND ORDERING PUBLIC TRANSPORTATION COMM., a RECORDS BE DISCLOSED public agency, - I Defendant. CHRONOLGY In early February, apparently February 7, 2007, the Bellingham Herald, and Jean Buckner of Bellevue, requestedl Geographic Information . System (GIS) data from the Utilities and Transportation Commission (UTC). The Seattle Post-Intelligencer also requested thi same data on February 22, 2007, and this was followed by a similar request by the Seattle Times and Tri-City Herald on March 1, 2007. MEMORANDUM OPINION DENYING INJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED . Page 1 of 20 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Department Four - 2000 Lakeridge nr. sw Olympia; wa 98502 SF-00213 PRR-2011-00450 The UTC notified all pipeline owners of these requests, and their intention to release the ESRI shapetiles,2 unless restrained by a court order.3 Northwest Gas Association quickly tiled a complaint on February 14, . 2007, and requested an injunction preventing disclosure, along with a . temporary restraining order (TRO), that would prevent release of this information, at least until there was time for court review as to whether such records should be released. The court was presented, and signed, the tirst of several agreed TROs on February 16, 2007, setting brieiing schedules, and a - special hearing date for Friday, March 16, 2007,4 to consider the injunction requests. . The UTC provided copies ofthe TROs to the known record . requestors.5 On March 7, 2007, the court consolidated the nine cases into the tirst case filed, in order to properly and efticiently handle these matters. From that point all pleadings were to be tiled in Thurston County Cause Ntunber 07-2-00321-2. On Friday, March 9, 2007, the UTC tiled one Response addressing the argtunents in the nine consolidated petitions. On March 12, 2007, the - 2 Environmental Systems Research Institute centerline shapetiles which- are digital representations of pipeline locations, pressure regulators, taps, mileposts, eathodic protection test sites, and valves. These tiles also contain information about diameter, pipeline operator's names, installation date, operating pressure, wall thickness, the commodity transported (such as natural gas or other substances) and other pipeline specifications. 3 This is required by RCW 42.56.540, particularly in eonjimction RCW 80.04.095. As of thi writing nine pipeline companies or associations have iiled similar suits and identical agreed TROs have been tiled in: Northwest Gas Assn, #07-2-00321-2, Olympic Pipeline Co., #07-2-00327-1, Chevron, #07-2-00328-0, BP West Coast Productions, #07-2-00377-8, MeChord Pipeline, #07-2-00398-1, Yellowstone Pipe Line, Terasen Pipeline, #07-2-0043 5-9, Valcro LP, 07-2-00437-5, and Portland General Electric, #07-2-00442-1. UTC Reply (sic.) Memorandum, p.6. This is the Respon to Petitioners' requests for TROs and injunctions to prevent disclosure, captioned 'Reply.' MEMORANDUM OPINION DENYING INJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED . . . . Page 2 of 20 Richard D. Hicks, Superior Court Judge . Thurston County Superior Court Depmment Four 2000 Lakeridge Dr. SW onympia, wa (ss0)1ss.ss6o SF-00214 . PRR-2011-00450 - requestors iiled a Motion to Intervene and attached a brief in Opposition to tl1e plaintiffs' injunction request. On March 14, 2007, the Petitioners Hled a Reply to the UTC's Response ?and the Opposition ofthe proposed interveners. In addition, an Amicus Curiae brief was iiled.? 0 On the aiternoon of March 16, 2007, alter reading all the submitted . material, the court allowed the interventionof the requestors, and considered the oral arguments of the parties. - PUBLIC DISCLOSURE ACT In 1972, the people of Washington passed Initiative 276, originally Chapter 42.17 RCW.7 This is popularly called the Public Disclosure Act (PDA). Among its provisions was the right, and method, by which members of the public could require that public records be disclosed. Over and over, the Supreme Coiut has affirmed that the PDA "is a strongly worded mandate for broad disclosure" to be construed in favor of disclosure, i while any exemption claimed is to be narrowly construed, PA WS v. W, . 125 Wn.2nd 243, 251 (1994).8 i In this case, the several plaintiffs claim seven bases on which the I ESRI shapefiles (requested records) should be ruled exempt. ?The Amicus brief was tiled by Northwest Industrial Gas Users, a nonprofit association comprised of thirty- tive 'end-users' of pipeline commodities. 7 Laws of 1973, ch. 1 (Initiative 276). This is the cite found in most reported cases. However, most of chapter 42.17 RCW that dealt with public records has now been recodified as chapter 42.56 RCW as of Jul 1, 2006. Citing to Hearst v. Hoppe, 90 Wn.2d 123, 127 (1978), and former RCW .251, and .920. MEMORANDUM OPINION DENYING INJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED Page 3 of 20 . mama n. men, same com mage Thurston Coimty Superior Court . Department Four 2000 Lakeridge Dr. SW - oiympa, wx sr=-00215 PRR-2011-00450 EXEMPTIONS CLAIMED The plaintiffs claim the follow bases for exempting the public records from being disclosed: I 1. RCW 42.56.270 - All nine plaintiffs claim this statute as a basis for exemption &om disclosure of the requested records. The exemption alleged here is: - "The followlng flnanclal, commerclal, and proprletary lnformatlon Is exempt from under chapter: (1) Valuable formulae, computer source code or object code, and research data obtalned by any agency flve . - years of the request for when would produce I prlvate galn and publlc The requested records arguably are valuable commercial designs or I drawings and proprietary information, which under particular circumstances, . might qualify to be protected up to the tive year period hom their creation. However, the question this court, and other cotu?ts before it are called to . make, is if their disclosure would lead to "produce private gain and public loss?" The PDA doesn't deiine, "would produce private gain and public I loss," but the Supreme Court has ruled onthis exemption in several cases. - In Servais v. Port of Bellingham, 127 Wn.2"d 820, 832 (1995), a request was made to disclose a cash flow analysis prepared for the Port to .. use in negotiations with potential business partners.? Both the trial court, I and the Court of Appeals, enjoined the disclosure of the records, and they I 9 Servais, at page 829, citing PAWSL at page 255. I - I . MEMORANDUM OPINION DENYING TNJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED -- . Page 4 of 20 . Thurston County Superior Court Dep@ntFour moo Lnkeridge nr. sw . . wx (asn) - . SF-00216 PRR-2011-00450 were upheld by the Supreme Court. But the Supreme Court rejected the Court of Appeals definition of "research data", finding it overly-broad, and I also rejected the requestor's narrow and restrictive definition, while holding, . at page 832, that the term meant: - We deflne "research data" as "a body of facts and Informatlon collected for a purpose and derived from close, careful study, or from . scholarly or Investlgatlon or InquIry." . The more broad definition of the Court of Appeals, which simply found research data to be "organized information," or, "material derived from a careful or diligent search which serves as a basis for discussion or decision," was rejected, in favor of a more restricted, or, limited definition, by the Supreme Court. Id, pp 830-831. Both Servais appellate co1u?ts reached back to the earlier PA WS, supra., decision to approve and find: 10 "The clear purpose of the exemptlon Is to prevent prlvate persons from uslng the Act to approprlate potentlally valuable Intellectual property for prlvate galn." If` what is being requested here meets the more narrow dehnition of the Supreme Court for "research data" as explained Servais, that is, facts collected for a specific purpose or derived &om scholarly or scientihc I investigation, and arguably it does, then is it exempt so as to prevent private persons &om using the PDA to appropriate this valuable intellectual property for private gain and public loss? In PA WS, supra., the undisclosed research i data in the grant proposals would have amounted to intellectual PAWS, at page 255. - - MEMORANDUM OPINION DENYING INJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED Page 5 of 20 Richard D. Hiclrs, Superior Court Judge - Thurston Coimty Superior Court Depertm?ntFour manage ur. sw onympa, ws . sr=-00211 . PRR-2011-00450 property privacy and public loss of patent rights." In Servais intellectual property was a cashflow analysis that would have hampered the port's_ ability to negotiate with potential partners. In Spokane Research Defense I Fund v. Spokane, 96 Wn. App. 568, 574-575 (1999), three items, or records - of a financial nature, which were usedu by the city in making a decision as to whether to pledge public credit and guarantee a development loan were requested. The court of Appeals instructs at pages 576-577 that to be exempt the proposed disclosure must result in both private gain and public loss [emphasis supplied]. Unlike PA WS and Servais the state agency in I Spokane Research did not show a public loss, especially since the decision making had been completed. Id Page 577. . In our case there is no reliable evidence that the documents sought would convey some private gain to the requestors, though Chevron tiled a . - declaration of Tracy`Long, a sectuity advisor for Chevron, on February 14, 2007, in which it is alleged that Ms. Buckner asserted that she requested the i information so that she could sell maps to the general public.13 Pursuant to i RCW 42.56.080 agencies can't require the requestor to divulge the purpose for which a record is sought. Therefore it must be an objective test, and not - a subjective test, as to whether private gain is at risk. In our case, the public agency, the UTC, does not even allege any public loss. Even more, they have provided this data to certain requestors, PA WS, page 255. Even when this is so, the exemption is not unlimited but creates a five year window where the government agency has exclusive use of the property. RCW 42.17 .3 10(1)(h) is now RCW 42.56.270 1). '2 Used, ari opposed to merely reviewed, Spokane page 574-575. This hearsay, within hearsay, is not something that a court could rely on as substantive evidence. MEMORANDUM OPINION DENYING INJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED Page 6 of 20 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Deputmentliour manage or. sw oiympa, WA sr=-ooz1a PRR-2011-00450 . and have even compiled over 500 atlases for distribution containing much, but not all, the information in the ESRI shapetiles}4 With so much . information about these tiles already out in the public arena what evidence is there now that this request would result in either private gain or public loss? Petitioners Pipelines have not met the burden of proofls required for . an injunction to be granted pursuant to Ijrler Pqye v. DOR. 96 Wn .7 85, 792, (1982),16 nor, has the agency proved that the records should not be disclosed pursuant to their burden set out RCW 42.56.550, either as to private gain or public loss, and when one puts this in the context of broadly construing disclosure and narrowly construing exemptions this exemption - does not apply.17 2. RCW 80.04.095_ I The plaintiffs claim that this statute forms a basis for exemption from disclosure ofthe requested records. Parsing RCW 80.04.095, for ease of I analysis, it reads: Records, subject to chapter 42.56 RCW, . . . contaln valuable - commerclal lnformatlon, . . . and network conflguratlon and deslgn lnformatlon, shall not be subject to Inspectlon or under chapter 42.56 RCW: (1) Untll notice The court shall determine . that the records are confldentlal and not subject to Inspection and - . When lnformatlon to the . *4 Affidavit of Alan Rathbun, director of the UTC pipeline safety program, tiled March 9, 2007, pp. 2-3. The requestor/interveners argue RCW 42.56.550(1) puts the burden of proof on the plaintiffs. However, that statute speaks only to the burden of proof being on the agency. l' Here, no clear legal or equitable right has been shown. To get an injunction one must show, (1) a clear right, (2) well-grounded fear that the right will be invaded, and (3) harm will result, Tyler Pqne, p. 792. The requestors even argue that the public interest would be benefited by disclosure of this information, Opposition to Injunction, tiled March 12, 2007, p.7. MEMORANDUM OPINION DENYING INJUNCTION AND - . ORDERING PUBLIC RECORDS BE DISCLOSED . . Page 7 of 20 - Richard D. Hicks, Superior Court Judge Thurston Conmty Superior Court - DepartmentFour . 2000 Lakeridge Dr. SW Olympia, WA qssojvsassco - sr=-0021s PRR-2011-00450 . or the attorney general, a person [Emphasls supplled] - Here the test the court is to employ is "if disclosure would result in private loss, including an unfair competitive disadvantage." However, to . trigger the application of this test, the entity providing information "shall designate which records or portions of records contain valuable commercial information." The UTC provides a specific procedure for designating . confidential information in WAC 480-07-160. Rule 160(3) requires "strict compliance." Plaintiffs who did not follow this strict procedure cannot claim this exemption. Only one plaintiff, Terasen,18 has, submitted a declaration stating that I they complied with the requirements of Rule 160. This was a rather vague reference made by Hugh Harden in his affidavit of February 27, 2007, page two, where he states that certain information was filed in conformance with Rule 160 on some unstated date in February 2007. The court finds it vague because he doesn't say that the UTC accepted his firm's designation of - - records being confidential, assuming certain records were so marked when submitted. What is more, this is followed by his admission that on February . 20, 2007, the UTC informed his firm that they intended to release the I information. One can only reasonably conclude that the UTC did not rule the records confidential, even if some were so marked. 18 Terasen Pipelines (Puget Sound) Corp. v. WUTC, #07-2-00435-1. i MEMORANDUM OPINION DENYING INJUNCTION AND - ORDERING PUBLIC RECORDS BE DISCLOSED Page 8 of 20 . - Richard D. Hicks, Superior Court Judge Thurston County Superior Court Department Four zono raimmga nr. sw . Olympia, WA 98502 . (seo)1ss.ss6o . sr=-oozzo PRR-2011-00450 . . I In any case, it is not a subjective test to be employed at the whim of - I the entity providing information. Rule 160 may apply to confidential . portions of records that: are protected under the PDA, or, information i protected pursuant to an order in an adjudicative proceeding, or, (3) valuable commercial information as provided inlg RCW 80.04.095. Rule 160(4) allows either the UTC, or, a requestor, to challenge the claim of I confidentiality. If it is challenged the burden to prove confidentiality is on - the one claiming it. Rule 160(5) allows a person to request information that the UTC has found to be confidential, but again, o11ly pursuant to a procedure set out in the rule. Based on the UTC's action, the only reasonable conclusion is that Terasen did not meet their burden of proof on their claim of confidentiality before the UTC. I I . So, then, pursuant to RCW 80.04.095 itself, and as implemented under Rule 160, if there is not a protective order in an adjudicative . - proceeding then confidentiality must be claimed under some section of . chapter 42.56 RCW, or, Rule 160 strictly followed.2? None of the plaintiffs have met their burden of proof to establish an exemption pursuant to RCW 80.04.095 and WAC 480-07-160. Emphasis supplied by this coun. . Of course this Rule is, in part, a tautology, i.e. only finding conhdentiality if the statute is followed but to follow the statute you have to follow the procedure in the rule. MEMORANDUM OPINION DENYING INJUNCTION AND PUBLIC RECORDS BE DISCLOSED - Page 9 of 20 Thurston County Superior Court Department Four - mishaps ni. sw Olympia ws asso: SF-00221 PRR-2011-00450 - 3. RCW 80.04.095 through RCW Several plaintiffs claim that, even though they may not have followed I the strict procedure of WAC 480-07-160 (Rule 1-60), that RCW 42.56.330(l) still provides a second chance at the exemption. They argue a cotut is allowed, for the first time,?to determine if the requirements of RCW 80.04.095 can support an exemption to disclosure. RCW 42.56.330(l) states: . The followlng lnformatlon relatlng to publlc and transportatlon Is exempt from under chapter: . (1) Records flled the and transportatlon or . attorney general under RCW 80.04.095 that a court has determlned are confldentlal under RCW 80.04.095; I So, then, arguendo, RCW 42.56.330(l) allows a court to make an independent determination as to whether the conditions described in RCW 80.04.095 support an exemption. This is a little odd, or, inconsistent, since that statute (RCW 80.04.095) requires a procedure to be followed as set out by the UTC. Nevertheless, if a court is able to read the statute with the understanding that the Legislature created a method for a confidentiality . I - determination to be made without consideration of the last sentence in the statute then that might be_considered. Of course, the first obstacle one runs into if this logic is to be followed is that exemptions are to be narrowly construed, and disclosure is broadly . favored, so how can a court justify reading the statute without the last zi Effective July 1, 2006, Laws of 2005, ch. 274 413. This statute was amended a second time in Laws of . 2006, eh. 209 5 8. - MEMORANDUM OPINION INJUNCTION AND ORDERING PUBLIC RECORDS BE Page 10 of 20 - 11 cmmruuge Thurston County Superior Court Dep?rtmentFour manage nr. sw o1ymp1?,wA . (360) . PRR-2011-00450 sentence? That basis alone is sufficient to deny the application of this exemption. I I. Nevertheless, plaintiffs argue that the court can determine confidentiality "if disclosure would result in private loss, including an unfair competitive disadvantage".22 In this regard certain plaintiffs file conclusory afidavitsza alleging release of this information could cause a competitive disadvantage and result in private loss. As far as this court can now determine no higher court has ruled on this new statute and no ruling has been brought to this court's attention by any of the parties' or other I I memorandtuns. But a simple review of the March 7, 2007, of Alan Rathbun, director of the pipeline safety program at the UTC, shows the records. requested have already been provided to many other requestors such as fire . oficials or local govemments and even 500 atlases distributed, containing - less data, for use by others. What is more, the UTC has commenced - . -- posting the atlases on the internet to allow full public access, at least as to pipeline location and route information. . Under these circumstance an injunction based on RCW 42.56.330(l) . - I through RCW 80.04.095 is denied. Plaintiffs have not met their burden of proof - 22 A portion of RCW 80.04.095 taken out ofthe context ofthe complete statute. . 23 Illustrative are the affidavits of Hector Fajardo, a vice president for asset management with Chevron, who filed an affidavit with this allegation (page 3) on February 15, 2007, in #07-2-00328-0 and Hugh Harden, vice president for operations of Terasen, who filed an affidavit with such an allegation (page 3) on February 28, 2007, in #07-2-0043 5-9. . MEMORANDUM OPINION DENYING INJUNCTION AND - ORDERING PUBLIC RECORDS BE DISCLOSED Page ll of 20 o. men, Superior com may Thumon County Superior Court DepartmentPour nr. sw wa sr=-oozza . PRR-2011-00450 4. RCW 42.56.540 - Several plaintif`f`s argue that RCW 42.56.540 creates an independent, or unspecified, exception to public record disclosure. Our Supreme Court has said that RCW 42.1754024 is simply an injunction statute that sets out procedure to enjoin release y' a specgfc exemption is found elsewhere, PA WS, 125 Wn.2"? at page 257.25 The Supreme Court makes clear in PA WS, page 258, n.6, that the Legislature has "never adopted an all-purpose or open-ended exemption". RCW 42.56.540 is the recodification of RCW 42.17.330 and PA WS makes clear at page 257, that this section ofthe PDA . governs access to a remedy not the substantive basis for a remedy. Plaintiffs claim for an exemption pursuant to RCW 42.56.540 is i denied. . 5. RCW 42.56.420 This new exemption became effective July 1, 2006.26 As of this . I writing, no appellate comt has examined it, so it is a matter of first impression. All of the plaintiffs claim the records requested fall within I RCW 42.56.420, and in their joint Reply brief, specifically RCW This statute has only been in effect for less than eight months, and_ because the Legislature passed Laws of 2005, chapter 274, as 2* RCW 42.17.330 referred to in PAWS has been recodified as RCW 42.56.540. ZS At page 257, in PA WSL it is the Supreme Court that supplies the emphasis to '?>roceduraI" and "spec#ic." They also clarify at page 261, u.7, anmy language suggesting something different than merely procedural found in Dawson v. Daly, 120 Wn.2 782 (1993) i overruled, or, distinguished to the extent it is inconsistent with their ruling. 26 Laws of 2005, ch. 274_? 502. I MEMORANDUM OPINION DENYING INJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED Page 12 of 20 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Department Four 2000 Lalneridge Dr. SW sr=-00224 . - - PRR-2011-00450 an Act specifically relating to public records, recodifying much of f`ormer chapter 42.17 RCW, and making particular technical changes during a . specific focus on public records, their recent language should be closely examined and followed. The court's obligation is to follow the Legislature's intent, as long as it is constitutional, and there is no argument here of any constitutional violations. . RCW states the following: The followlng lnformatlon relatlng to securlty ls exempt from under this chapter: (1) Those portlons of records assembled, prepared, or malntalned to - prevent, or respond to terrorlst acts, which are acts . that dlsrupt the conduct of govemment or of the general populatlon of the state or the Unlted States and that manlfest . an extreme to human Ilfe, the publlc disclosure of would have a substantial Ilkellhood of threatenlng publlc safety, of: and unlque assessments or and unlque response or deployment plans, lncludlng complled underlying data collected ln preparatlon of or essential to the assessments, or to the response or deployment plansThe Legislature describes infomation relating to security as exempt if it is a portion of a record "assembled, prepared, or maintained to prevent, mitigate, or respond to criminal terrorist acts." So, the first inquiry is whether these requested records were assembled, prepared or maintained to prevent, mitigate or respond to criminal terrorist acts? If so, then the second inquiry is whether their disclosure would likely threaten public safety in a certain way. MEMORANDUM OPINION DENYING INJUNCTION AND - ORDERING PUBLIC RECORDS BE DISCLOSED Page 13 of 20 . Richard D. Hicks, Superior Court Judge Thurston County Superior Court . Department Four 2000 Lakeridgc Dr. SW Olympig WA (seo) sI=-oozzs - PRR-2011-00450 The certain way is the third inquiry. That is, whether public safety would be threatened by and unique vulnerability assessments ai specific response plans, including the underlying data compiled in preparation to response plans or essential to assessment of such plans. I So, the first question is, were these records prepared or maintained to . prevent or respond to terrorist acts?27 The Legislature passed the Pqneline Safety Act, in Laws of 2000, ch. 191, enacted with an emergency clause to be effective on March 28, 2000, when it was approved by the Governor.28 The Act recognized that the state should work with the federal government, but also adopt its own public safety and environmental standards for pipelines, and other methods of - transporting hazardous materials.2? This legislation was directed toward safety issues, not 'terrorist acts,' though, of course, such acts are always nested within the larger issue of safety itself . Part of this Act enacted what is now RCW 81.88.080. This required . pipeline companies to provide accurate maps and specifications regarding their pipelines to meet the needs of first responders so that the UTC could consolidate the maps into a statewide geographic information system (GIS). This information was then to be made available to the "one-number locator 27 The draiters of this legislation list descriptors that have overlapping connotations even though they may denote differences. The arguments are easier to see if we use only the essential portions as long as some determinative descriptor is not omitted. For instance, if the case turned on whether the records were "assembled" or whether they were "prepared" th both should be considered. In this case the ruling will be same whether the records are described as being "assembled" or described as being "prepared." Portions ofthe legislation were vetoed by the Governor. 2? Laws 2000, ch. 191, 1, which amended or added several sections to the RCW including RCW 81.88.005 which sets out its intent. OPINION DENYING INJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED Page 14 of 20 mama o. man, cam mags Thurston County Superior Court . Dep?rtmenrFour nr. sw orympia wa . sr=-oozza - PRR-2011-00450 services".3? _The GIS database includes the ESRI shapefiles which are the digital representations of pipeline locations and other specifications.31 These are the records requested in our case. - The plaintiffs argue RCW 42.56.420(1) exempts these records - because they contain details of the pipeline's components and in responding to any incident, including one that might be caused by a terrorist, one has to . know the components. That begs the question. Knowing the components is necessary for any response to an incident, not specifically a terrorist . incident, or, some other insane action. For instance, these components would have to be known in- order to best respond to any incident, such as if a . backhoe operator punctured one of these pipelines by digging in an unsafe marmer. That's why this information was created, to assist first responders and also to tie in with RCW l9.122.027, the one-number locator system. I The records requested here were prepared and are maintained to assist first responders in relationship to any incident and to coordinate with the federal govemment so that there would be a useable database for pipelines that carry hazardous material. Could that include an incident caused by the insane logic of a terrorist? Of course, but that possibility, though real, is not the purpose for which these records were prepared -- at least pursuant to the I legislation enacted by Laws 2000, ch. 191, known as the Pqyeline Safety Act. - This refers to ch. 19.122 RCW dealing with underground utilities and specifically RCW 19.122.027. 31 See affidavit of Alan Rathbun, director ofthe UTC pipeline safety program, Hled March 9, 2007, pp. 2-3. MEMORANDUM OPINION DENYING INJUNCTION AND 2 ORDERING PUBLIC RECORDS BE DISCLOSED I . Page 15 of 20 Richard D. Hicks, Superior Court Judge . Thurston Coimty Superior Court Depaxtrnentliour - 2000 Lekeridge Dr. SW Olympia, WA 98502 (seo) 786-5560 sr=-oozzv - . PRR-2011-00450 The word "terrorist(s)" does not even appear in that legislation rather it . speaks of "public safety," "environment," and "serious accidents."3? However, the plaintiffs argue that, even if these records were compiled and maintained for safety purposes that the court should give a - . broad interpretation to this exemption, since among the factors that could affect public safety would be "terrorist acts," and the potential for harm is I great if such a person or persons were to_ obtain and learn how to use the . sophisticated software required, and by that means, leam where the pipelines might be most vulnerable. They argue that the records were not gathered for a "sole" purpose and that the exemption might consider all purposes for - which the information might have been gathered.33 This argtunent might be more persuasive if several purposes were listed in the legislation that I required the records to be gathered and maintained. Then a court 'might' be able to follow the principle of narrowly construing the exemption and still . I - iind room to apply the exemption. Perhaps that is one of the purposes ofthe - pending legislation found in House Bill 1478, which as of early attemoon March 16, 2007, was still under consideration in the House of - Representatives, and briefly addressed below. At oral arg1unentplaintiffs' . - counsel conceded that this bill would not pass in this year's Legislature but that plaintiffs held out hope for some policy statement hom the Legislature on this issue. I 81.88.005 33 Plaintiifs Reply briei] p.8. i MEMORANDUM OPINION DENYING INJUNCTION AND - ORDERING PUBLIC RECORDS BE DISCLOSED - Page 16 of 20 . Richard D. Hicks, Superior Corm Judge Thurston Coimty Superior Court Department Four . mam or. sw WA (ssoms.ss6o sr=-oozzs . - PRR-2011-00450 - - So, then, the plaintiffs claim for an exemption does not meet the first test. They have not met the burden of proof that these records were prepared or maintained to prevent or respond to terrorist acts. I Having failed the first test we don't get to the second test of whether their disclosure would threaten public safety. The plaintiffs assume that this threat must be true. Over, and over again, they raise the specter of "9/1 1 - However, we need to have the courage to use that shocking lesson, and at the same time go on to live hee and democratic lives. Shall we refuse to - publish ferry schedules because it wouldf make it easier for insane terrorists I to meet the boat at the dock and time an explosion? If so, then it is the people by Initiative, or, their representatives in the Legislature, that must write a clear law as to.what is exempt from disclosure. The court should not be asked to turn the guiding principles of the PDA upside down by giving exemptions a broad construction, and disclosure a narrow construction, which is what is being sought here. That is the only way the plaintiffs could . pass the second test of this statute. The third test is not reached when the first and second are notmet but it suffers fiom the same lack of specificity. There is no evidence of public safety being threatened by disclosure of specific and unique vulnerability . assessments or specific response plans, whichthen, might include the - underlying data compiled in preparation to response plans or essential to - assessment of such plans. Any response plan is not for terrorist activity but to guide responders in case of an accident or other safety issues. Could that include a terrorist act? Of course, since it could include many things, MEMORATJDUM OPINION INJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED Page 17 of 20 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Departme?tFour nr. sw orympu, wx (360) _sr=-oozzs PRR-2011-00450 including construction accidents, or, the interference of someone with insane logic, but that kind of constructionlof the exemption is broad and not narrow. It is very telling that none of the pipelines (with the possible exception of Terasen34) marked this data as confidential and followed the RCW 80.04.095 and WAC 480-07-160 procedure set out by the Legislature and . the UTC. Only now is there a claim of confidentiality. Why was not such a claim and the proper procedure followed if such a claim could be sustained in 2000 -- or, at any time since? Second, the`UTC, which would have the burden of proof if they believed that this data was exempt might have held it back, and iiled a log with the court, but they did not. Although in the end it is the courtis decision, and not the agency's, as to what is exempt, it is the - I agency that makes the initial determination.35 They did that here. They determined that they would honor the request and release the material and informed the pipelines of their decision. . They plaintiffs have not met their burden of proof to claim this exemption. I 6. House Bill Number 1478 There is currently pending in the House of Representatives a piece of legislation identified as HB 1478 which, as amended, would amend RCW 81.88.080 to limit certain information to only first responders, and make available to the public only limited data, such as maps of a scale of 1:24,000. 3* But as discussed above though they may have started such a procedure it was not successfully completed. semis, supra., 127 Wn.2"? 820 at ss4-sas. MEMORANDUM OPINION DENYING INJUNCTION AND ORDERING PUBLIC RECORDS BE Page 18 of 20 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Department Four mmap Dr. sw - WA . . sr=-oozso PRR-2011-00450 This court expresses no opinion on the language of this bill or what I I effect it would have if passed. So far, it doesn't contain 811 emergency clause, is not retroactive, hasn't been passed by the Senate, nor, signed by the Governor. As such it has no weight regarding the intent of the I Legislature as a whole. I Although the court is appreciative that the plaintiffs bring this to the court's attentionfor consideration, it can contain no weight at this point in the consideration of this case. I 7. Federal Preemgtion . The iinal basis by which the plaintiffs claim an exemption is that disclosure of these records is somehow preempted bythe authority ofthe federal government. First, an argument of this kind was strongly made in I - PA WS, 125 Wn.2"d 243, 265-268. This comt can-not improve on the analysis - undertaken by the Supreme Court in that case. The Federal Freedom of Information Act (FOIA) does not expressly preempt the state PDA and doesn't apply to state agencies, PA WS page 265-266. Although PA WS does not rule out the possibility that a federal statute in a particular situation might preempt a state action no showing of that has been made here. . Secondly, if the Federal Government has an interest these records . as a security issue, then the Federal Govermnent though Homeland Security, or, by an appearance of the United States Attomcy requesting to intervene or, perhaps, remove the case to Federal Court, might have occmred. This MEMORANDUM OPINION DENYING INJUNCTION AND ORDERING PUBLIC RECORDS BE DISCLOSED Page 19 of 20 Richard D. Hicks, Superior Court Judge . Thurston County Superior Court -- DepmmentFour Lamm nr. sw oiympa, wx moz sr=-oozs1 - - PRR-2011-00450 has just not happened. There also is no evidence, nor law, that would lead one to believe that such participation would be successfi1l.3? Third, the court does note, and respect, that RCW that records not subject to disclosure under federal law, such as national security - briefings with local officials, related to preparedness for acts of terrorism would be, and are, exempt. However, there is no evidence that the records requested here come under this section - save by a strained and broad interpretation as explained above. CONCLUSION AND ORDER Having considered the SCVCI1 bases by which plaintiffs claim these requested records exempt, this comt finds that only under a construction I calling for a narrow right to disclosure, while broadly construirrg any exemption, could such an argument prevail. The court denies the injunction, and orders the UTC to follow through with the initial movement to disclose the records. Dated: March 16, 2007 - . Richard D. Hicks Superior Court Judge - 36 If a case is removed to Federal Court then the State Court immediately loses juri diction upon the removal, but, if the removal was precipitous, then it bounces right back. MEMORANDUM OPINION DENYING INJUNCTION AND - ORDERING PUBLIC RECORDS BE DISCLOSED Page 20 of 20 Richard D. Hicks, Superior Court Judge Thurston County Superior Court Department Four ur. sw wx (360)786-5560 sr=-oozsz PRR-2011-00450 unaSUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY - - 8 NORTHWEST GAS ASSOCIATIONConsolidated A .10 Plaintiffs, Nos. 07-2-00321-2 etal. 11 Iv. . NOTICE OF APPEAL iz A -13 I A Defendanti Plaintiffs Northwest Gas Association, Olympic_Pipe Line Company, I 16 Chevron Pipe Line Company, Northwest Tenninaling Company, 17 Yellowstone Pipe Line Company, ConocoPhillips Pipe Line Company, I I - 18 i McChord Pipeline Company, Valero Terasen Pipeline Co., BP st 19 Coast Products LLC, Intalco Aluminum Company, B-R Pipeline Company, . 20I Portland General Electric, and KB Pipeline Company hereby seek review, 21I by Division of the Court of Appeals, of the Mernorandimi Opinion 22 Denying Injunction and Ordering Public Record Be Disclosed, dated - 0l3000.0624Il369l00.l I (ZUGIZUJ-7000 00/10/07 21:51 FAI 208 223 7107 LPSL ni on . 1 V, this 1 day-ofMa1?ch, 2007. . . . . 2 LANE POWELL Attorneys for Plaintiffs Chevron Pipe Lino 6 Company. Northwest Termumlmg Compmy, Pipe Line Company, 7 - Pipe Line Company aud. 1 . MoChot?d Pipeline Company . STOEL RIYES LL 74/ 9 mm/Jeffrey Courser, WSBA No. 15466 A - . Vanessa Soriano Power, 12 I WSBA No. 30777 . Timothy McMahon, WSBA N0. 16377 13 1 . Attorneys for Plaintiffs Gas - 14 i - Association KB Pipeline Plaintiffs 15 1 I LEYH - 16 TOLLEIQSON LLE /Harrignn, A o. 51 . T. Wion, WSBA No. 33207 19 1 for Plaintiff Olympic Pipe Line 20 I ompauy 21 1 CASCADIA LAW GROUP . 22 23 1 By - StepHon J. Tan, E576 24 Tanya Bamett, WSBA No. 17491 . . .25 - Attorneys for Plaintiffs LPLmzPowu.r.PC` A NOTICE OF APPEAL - 2 1 0|z000.0s24msm00.1 - sr=-002s4 PRR-2011-00450 21:52 208 22Q LPSL 008 2 1 . 3 3 A By~f77? A A ason T. uzmaShame Strom Carlson, WSBA No, 25349 1 . - Attorneys for Plaintiff 5 1 Tcrascn Pipeline Co. 6 CABLE HUSTON BENEDICT 11 - LLOYD LLP 1 . - A,wuzzyA>> Bw . 9 A - W1'11iam J. WSEA No. 350El A Attorneys for Plaintiffs BP West Coast 10 Products LLC Intalco Aluminum Company LANIPUWILL PC 1 NOTICE OF APPEAL - 3 I SF-002ss PRR-2011-00450 . W?stlaw. 168 P.3d 443 - Page 1 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 . (Cite as: 141 Wash.App. 98, 168 P.3d 443) preemption issue. Court of Appeals of Washington, Reversed and remanded. Division 2. NORTHWEST GAS ASSOCIATION, Olympic Pipe West Headnotes Line Company, Chevron Pipe Line Company, Company, Yellowstone Pipe 111 Injunction 212 (:151 Lme Company, Conocoph1ll1ps Pipe Lme Company, BP West Coast Products LLC, Intalco Aluminum 212 Injunction Corporation, McChord Pipeline Company, Terasen PmlPipelines (pugon Sound) Corporation, vnono 2 unaQ1s Portland General Electric, B-R Pipeline Company, 1 proce 1. and KB Pipeline Company, Appellants, . . 212k151 k. Scope of Inquiry and Ques- WASHINGTON UTHJIEES AND TRANSPOIL tions Considered. Most Cited Cases TATION COMMISSION, Respondent, Bellingham Herald and Allied Daily Newspapers, 326 C: li 63 Intervenors. Records No' 326}] Public Access Oct. 2, 2007. 326110}) General Statutory Disclosiue Re- . quirements . . . . 326k61Proeedm' 1 Pieeim eeaizeme breuehi sew 326116; n. Judiglal in agamst the Ut1l1t1es and Transportation General Most mines . Commission (WUT C), seeking to enjoin disclosure of detailed map and attribute-level pipelinedata in re- sponse to newspapers' _Public Records Act request. fmlum ie lt Newspapers intervened. The Superior Court, Thurston plannedto consolidate a permanent injunction t1?1al on County. J-. denied pipe1inee' request Pf A?t for preliminary injunction and ordered WUTC tp hmmary 1u]unct1on application hearmg was reversible disclose requested data. Pipelines appealed. error; part1es challengmg the request were unable to develop evidence fully for the prelimmary in- . . . . junction, they provided trial court with substantive mpmee the Cemf of sono of no ouuono no woo pn. (11 failiire to noury parties or consolidation or pon- gg; gi?11?" manent injunouon umn preliminary injunction . "g . was error requested data followmg summary procedure defeated Q) pipehnes were likely to prevail on 0131111 that the ml Juuctmn RCWA data was exempt h?om disclosure, in support of pre- a liminary injunction; gs; pipelines noo well-grounded fear that disclosure L21 Inlunefien 212 @151 would result in invasion of their rights; (4) pipelines demonstrated they would sustain irrep- 212 Injunction _arable injury without injunction; 212IV Preliminary and interlocutory Injunctions (5) equitable considerations weighed in mvor of in- Grounds and ProceedingstoProcure junction; and Proceedings (Q parties were entitled to develop full record on 212k151 k. Scope of Inquiry and Ques- 0 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. SF-002ae PRR-2011-00450 . 168 P.3d 443 - Page 2 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 (Cite as: 141 Wash.App. 98, 168 P.3d 443) tions Considered Most Cited Cases - . Injunction Although the Civil Rules allow a trial court to 212IV Preliminary and Interlocutory Injunctions order a trial of an action on the merits to be advanced Grounds and Proceedings to Procure 1 and consolidated with a preliminary injunction ap- Grounds and Objections - plication hearing, if the court does not expressly state 2l2kl38.1 k. In General. Most Cited - that it is consolidating the injunction hearing and a Cases . trial on the merits, it may not render a iinal determi- nation th? To obtain injunctive relietj a plaintiff must es- tablish (1) he has a clear legal or equitable right, (2) he Injunction 212 (:-7151 has a we1l--gr0unded fear of immediate invasion of that right by the entity against which he seeks the injunc- Injunction tion, ar1d (3) the acts about which he complains are . 212IV Preliminary and Interlocutory Injunctions 'fiilhlir will in wd substantial Grounds and lem: must thr<=? proceedings basic requirements regardless of whether the injunc- 212k151 k. Scope of Inquiry and Ques- mm h? is t?mP?I'm'Y tions Considered. Most Cited Cases - . Injunction 212 YB2 Purpose ofthe rule requiring a court to give notice when it plans to consolidate a trial of an action on the 212 Injunction merits with a preliminary injunction application 212IV Preliminary and Interlocutory Injunctions - hearing is to give the parties notice and time to prepare . Grounds and Proceedings to Procure i so that they will have a full opportnmity to present their 2 In General cases at the permanent injunction hearing. 212kl32 k. Nature and Scope of Provi- - sional Remedy. Most Cited Cases LQ Injunction 212 @138.3 A preliminary injunction-serves the same general p1n?pose as a temporary restraining order-to preserve Injunction the status quo tmtil the trial court can conduct a full hwina mm Grounds and Proceedings to Proc1u?e . Grounds and Objections Injunction 212 $138.18 i . 2l2k138.3 k. Preservation of Power to Eifectuate Remedy; Status Quo. Most Cited Cases 212 Injunction - 212IV Preliminary and Interlocutory Injunctions "Status quo," in the context of a preliminary in- Grounds and Proceedingsto Procure - junction, means the last actual, peaceable, noncon- Grounds and Objections - tested condition which preceded the pending contro- 2l2k138,l8 k. Likelihood of Success on versy. . Merits. Most Cited Cases . gl Injunction 212 @9 . Injunction 212 Injunction Injunction @21 Nature and Grounds in General 212IV Preliminary and Interlocutory Injunctions Grounds of Relief Grounds and Proceedings to Proc1u?e 212k9 k. Nature and Existence of Right Requiring Protection. Most Cit_gd Cges 212k151 k. Scope of Inquiry and Ques- tions Considered. Most Cigd Cases . Injunction 212 }138.1 . 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. SF-00237 PRR-2011-00450 168 P.3d 443 Page 3 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 . (Cite as: 141 Wash.App. 98, 168 P.3d 443) At a injunction hearing, the plaintiff . need not prove, and the trial court does not reach or Records resolve, the merits of the issues underlying the re- 326]]: Public quirements for injunctive trini oouit General sammy Disclosure as- considers only the likelihood that the plaintiff will ultimately prevail _at a trial on the merits by estab- 32653 Mnnci-S gnbicct to Discicsin-ci lishing that he has a clear legal or equitable right, that Exemptions he reasonably fears will be invaded by the requested 326164 ic In Gcnci?ni_ Most Citgd Cases . - disclosure, resulting in substantial harm. Courts should construe Public Records Act ex- 181 Record 326 **67 emptions l'13.l'l'0Wly. wesvs RCWA 42.56.001 et sag. 2% Records mj Records 326 . i 32611 Public Access 326H(?i General Statutory Disclosure Re- 326 132611 Pubnc Access 326k61 Proceedings for Disclosure in I mi - - ogg-; kl Findings and Order; mum- I Gene tatutory Disclosure Re I tive Relief Most Cited Cases 326k61 for Disoiosuro . 326k61 k. Findings and Order; Injunc- Pipelines were likely to prevail at on their tive Rcjicij Mcsi Citcd claim that detailed map and attribute-level pipeline data was exempt trom disclosure under terrorist se- Pi - - pehne compames had well-g1?ounded fear that ounty extolmpnon of thro Public Record; not oo no to gcnm; disdosum or acumen map and attribute-level on request ?r mums} Fm" "shapetile" pipeline data would result in an invasion J?mmg_ Un mm? in m?Sp?mm?n of their rightto keep at least some of the data conti- Commission (WUTC) from the data, alt- so ss so support moo, for osoiimiosry hough the data was not initially compiled to combat injunction, oojoioino Wsshiootoo Umitios soo t?H?mm; m?r? mdumy r?Pr?S??muv?? _aS' Transportation Commission (WUTC) from disclosing serted that gas pipelme system was part of critical tho dots oorsosot to Pubiio ?n?rg? ?f r?gl?n m?ogm1:am` pipelines demonstrated that disclosure of at least some . or d?stm?u$m ?f we vc of the data would be an immediate invasion of their . potentially catastrophic consequences. Wests RCWA right so tho dots with so tho general public and to disclose it only to first respond- ers and others who would use it to protect the public. l21 Injunotton 212 (*138-18 we-srs 11cwA 42.56.001 Gt sm. Injunotion - gg itemus 326 I Preliminary and interlocutory Injunctions - Grounds and Proceedings to Procure 326 Grounds and Objections --L326H Pobiio 2l2k138.l8 k. Likelihood of Success on Statutory Disoiosoro Ro_ - Merits. Most Cited Cases ouiromoms . 326k61 for Disclosure . To establish a clear legal or equitable right, as ic Findings and Order; required to ohtnin preliminary injunction, the mov- ave Rene: Mon ing party must show that it is likely to prevail on the m?mS? Pipelines demonstrated that they would sustain irreparable injm?y if trial court did not enjoin Wash- Records 326 ($54 ington Utilities and Transportation Commission - 0 2011 Thomson Reuters. No Claim to Orig. Us Gov. Works. PRR-2011-00450 168 P.3d 443 Page 4 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 (Cite as: 141 Wa h.App. 98, 168 P.3d 443) (WUTC) from disclosing confidential detailed map Because injunctions are addressed to a court's - and attribute-level "shapeiile" pipeline data, piusuant equitable powers, a court must examine the require- to Public Records Act request, so as to support pipe- ments for a preliminary injunction in light of com- . lines' request for a preliminary injunction; once re- peting equities; this examination includes balancing leased the data could not be retrieved and retumed to a the relative interests of the parties and, where appro- protected or confidential status. West's RCWA priate, the interests ofthe public. 42.56.001 et seg. - . jg; Records Record 326 (Wm Records Records Public Access Public Access General Statutory Disclosure Re- General Statutory Disclosure Re- quirements . quirements 326k61 Proceedings for Disclosure 326k61 Proceedings for Disclosure . 326k63 k. Judicial Enforcement in 326k67 k. Findings and Order; Injunc- General. Most Cited Cases . tive Relief Most Cgg' Cases Trial co1u?t on remand would be required to afford . Equitable considerations weighed in favor of parties opporttmity to develop a full record at trial on granting preliminary injunction, enjoining Washing- issue of whether federal law preempted state law on ton Utilities and Transportation Commission (WUTC) the disclosure of detailed attribute-level and map in- irom disclosing detailed map and attribute-level pipe- formation concerning pipelines, in action by pipeline . line "shapeiile" data, pursuant to Public Records Act companies seeking to enjoin Washington Utilities and request; detailed pipeline location maps were availa- Transportation Commission (WUTC) from disclosing . ble to the public, public could access necessary pipe- the data pursuant to Public Records Act request. line details for specific properties through "one-call" West's RCWA 42.56.001 et seg.; 49 U.S.C.A. system, the information was provided to iirst re- 60104(c), 60117(d). . sponders, and there was potential of dan- gers to public safety if detailed data was disclosed to **446 Donald Comer at Law, sabvtcurs. Of Vancouver, WA, Vanessa Soriano Power, Stoel Rives LLP, Seattle, WA, Timothy Laurence Stoel Rives Law Firm, William J. Le@ Attorney jg} Injunction 212 ($138.12 . at Law, Portland, OR, Michael Alan Nesterog`, Lane - Powell PC, Aggur Wggington Harrigan Jr., Dan- @2 Injunction ielson Harrigan Leyh Tollefson LLP, Christopher 2121v rmiiminary and rmmocutmy DHLT Grounds and Procurc Law G1'0up, Scailile, WA, Jennifer Tanya Batng Grounds and Objections Cascadia Law 01YmPia>> WA, 212k138.12 k. Harm to Defendant or Lima. P6Tkl?$ Coie LLP, 'I'hird Parties; Public Interest. Most Cited Cases wA? fm` Injunction 212 Daniel Office of Atty. Gen., Olympia, for Respondent. - Injunction - 2121v mummy and mmnocurmy injunction Groimds and Objections 212k1ss.1s k. Balancing or Yarmurh Wilsdon Calfo PLLC. . Equifigg Most Ciwd (1811 Gross, Y8I'IIll1lh C8lf0 PLLC, $681116, WA, for Amicus Curiae on behalf of the American . 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. SF-00239 PRR-2011-00450 168 P.3d 443 . Page 5 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 (Cite as: 141 Wasl1.App. 98, 168 P.3d 443) Petroleum Institute. shapeiile data before holding a trial on the merits, we reverse and remand for a trial on the merits of the Signe H. Brunstad, University of Washington School f?1' *1 P?1'm?11??1 111.1?11?11??- of Law, William H. Gates Hall, Seattle, WA, for Amicus Curiae on behalf of Washington Coalition for *103 FACTS Open Govemment. I. Backgroimd - A. Pipeline Safety Acts Hu1~tr,J. - 1- Fstisrnl *101 ll 1.1>1eintitrs Northwest Gas Association, 'Il 4 in 1979. the United States Olympic Pipe Line Company, Chevron Pipe Line_ H?Z?1'd?11s Liquids Acts 1?0d91?d Company, Northwest HRCT Gas of In West Coast Products LLC, Meciioni Pipeline com- rnnditisd this 1979 891. nninsd it with the . pany, Intalco Aluminum Corporation, Yellowstone Nsm'11] Ast, 11114 1'?11?111?d 11 1116 Pipe Line Company, ConocoPhillips Pipe Line Pilsslins Ast- 49 ChsP1?1' 601- i Company, Terasen Pipelines (Puget Sound) Corpora- . tion, Valero LP, Portland General Electric, B-R Pipe- 1[ 5 The ptupose of the Federal Pipeline Safety line*102 Company, and KB Pipeline Company (col- Act is "to provide adequate protection against risks to lectively, "the Pipelines") appeal the Thurston County life and property posed by pipeline transportation and - Superior Court's (1) denial of their request for a pre- pipeline facilities." 49 U.S.C. 60l02(a)( 1 I. To ac- liminary injunction; and (2) the court's order, based on complish this pinpose, the Federal Pipeline Safe- the Public Records Act, chapter 42.56 RCW, that the ty**447 Act establishes minimum safety standards. - Washington Utilities and Transportation Commission U.S.C. 60101-60137. - (WUTC) disclose to Intervenor Newspapers and a inivsts individwni hishiy dstniisd sits vipsiins shits- ll 6 In addition, the retietsi or tural and location information and underlying data Transportadon (Federal Netiennl pipeline ("shnp?ti1s" t1??)th?tth?1?W rsqnirsd Pipsiinss Mapping Program includes National Pipeline Mg; ms with the ping System-a publicly-available web-based tool - that (1) identifies the general location of gas and haz- 1[ 2 Asserting that this shapetile data is exempt ardous liquid pipelines throughout the United States; imder Washington's Public Records Act, the Pipelines (2) provides gas and other pipeline location data down . argue that (1) they met their burden of proof for a to street-level, showing nearby streets on a 1:24,000 preliminary injunction, including showing a likeli- scale and the applicable zip codes for the pipe1ines' hood of success at a permanent injunction trial on the locations; (3) identities each pipeline operator by merits; (2) equitable interests favor granting a pre- pipeline; and (4) identifies what material each pipeline liminary injunction; (3) the WUTC's release of this transports. . highly detailed "shapeHle" data will make their pipe- line facilities vulnerable to sabotage and, thus, will Tnelqetiennl pipeline Mapping System tt tn pnhiin and security; is available at npnis. (4) ninl nnint npplisd the tn dot gov inst visited 8121/2007. . 5 preliminary injunction hearing, essentially consoli- i it 7 stones ooiottn of on Federal 1>ipe1ine - t? th? p?m?s' v1?1?u?n ?f and Safety Act is a federal preemption clause for interstate . (5) th? nm ??urt thus md pmmtumly that pipelines This *104 preemption clause expressly the Pipelines had failed to show that the requested -d nm a auth ri Ot ad i sha eiile data met Public Records Act exem tion -cs -0 ty may}! Opt 91. P, P, tmue force safety standards for interstate pipelme r?quu`?m?ms Hm um P1p?1m?s facilities or interstate pipeline transportation (Em- mm "d?y in wm, t? pr?v? phasis added.) Nonetheless, the Federal Pipeline Safety Act allows states to adopt more stringent safety 13 H?lf1?1g 601111 11s 11 of standards for ina-astate pipeline facilities and intra- law 111 P1P?l1??s` 1`squsst f?1 *1 state pipeline transportation if they receive certitica-- i ininnctinn and in WUT0 to thssinss tion tnniet 49 U.s.c. ooiosgsi from the Federal . 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. SF-00240 PRR-2011-00450 . 168 P.3d 443 Page 6 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 (Cite a 141 Wa h.App. 98, 168 P.3d 443) . Office of Pipeline Safety and the Federal DOT. reference" Title 49 ofthe federal pipeline safety Code - U.S.C. 60l04(c). Under this section, the Federal of Federal Regulations. And WAC 480-75-600, for DOT has certified the Washington Utilities and example, requires all affected pipeline companies to Transportation Commission (WUTC) to regulate provide the WUTC with "maps, drawings, and records intrastate pipeline operators and facilities in the State of sufficient scale and detail as is necessary to show of Washington. Olympic Pige Line Co. v. City 0[ Se- the size and type of material of all facilities." WAC gttle, 437 F.3d 872, 879 (9th 480-75-600. 1] 8 In addition, 49 U.S.C. 60106(a) authorizes **448 B. Pipeline Compliance the WUTC to participate in the oversight of interstate 1I 12 To comply with these safety requirements, pipelines and establishes the WUTC as an agent ofthe - the Pipelines provided the WUTC with two tiers of Federal DOT. As an authorized Federal DOT agent, infomation. The tier of infomation, termed the WUTC has delegated authority to ensure Wash- "high-level data," comprises general pipeline location - ington pipeline compliance with federal safety stand- information, typically on a 1:24,000 scale. The WUTC ards. 49 U.S.C. ?601l7(c). currently provides these hggi-level general-location - pipeline maps to the public. 2. State 1[ 9 In 1999, a natural gas pipeline exploded near - Available at . http://w Bellingham, killing a fisherman and two children playing in a nearby creek. In response to community 48f3lj0882572200075afb6 lasted visited outcry, the Washington State Legislature passed the 8/21/2007. Washington Pipeline Safety Act to "protect the health and cf citizchs cf cf 11 13 The second tier of information, termed cnt- - and quality cf st?tc's MEM tribute-level is mono donned and specialized 81-88-005- This Act rcquircs ptcmuisstich than no nm tier or information. nno second an cf euidclincs. which 1>?t?11c1 pipciihc attribute-level om inonndos ??onno? geographic posi- . Suidclims- tioning system coordinates for the pipelines and ter- minals, locations and types of metering facilities, taps, 1{ 10 Washington's Pipeline Safety Act requires mileposts, cathodic protection test sites, and valves, "hazardous liquid pipeline companies, and gas pipe- plus information about the diameter of *106 the pipe- line companies with interstate pipelines, gas trans- line, depth, and commodities transported." Br. of mission pipelines, or gas pipelines operating over two Appellant at 8-9. This attribute-level data is electron- hundred pounds per square inch gauge, to provide ically embedded in a WUTC "shape1ile"-a digital acc1u?ate maps of their pipeline to specifications de- representation of the detailed data, which, when veloped by the RCW 81.88.080 (emphasis opened with a particular computer program, creates a added). Washington's Pipeline Safety *105 Act also precise drawing of exact pipeline locations, including requires the to provide this pipeline map in- imderground depth. The WUTC c1u?rently provides . formation to the One-CaH System-a state program this shapeiile attribute-level data to emergency ser- instructing residents to call a de ignatedtelephone vices "i:irst respor1ders," but it does not provide this number before excavation or digging to determine if shapeiile data to the general public.m their plans will interfere with underground utilities. . Information the pro- To our this case inyolvc? vides to the One-Call System must be consistent with the {lm publie rgqugst for pipeline RCW . - . C. Washington's Public Record Disclosure Acts 11 Tc with Pipciihc 1.1972 Public Disclosure Act, onnpzon 42.17 new Act sud tc WUTC 11 14 In 1972, no people or Washington passed with Nstichsl Pipciihc Msppinz 276, originally as on. 42.17 new tht? WUTC T?Su1?ti??S unda and popularly known as the "Public Disclosure Act." WAC 480-75- "hy Lows or 1973, on. 1. no stated policy was 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. SF-00241 PRR-2011-00450 - 168 P.3d 443 Page 7 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 - (Cite as: 141 Wash.App. 98, 168 P.3d 443) of the general civilian population of the state or the to promote complete disclosure of all information 000 i?dlf? respecting the Hnancing of political campaigns erid ference to human life, the public disclosure of which . iobbyirig, and the Hnancial sffsirs of eiected ofri- would have a substantial likelihood of threatening cials and candidates, and firll access to public rec- - ords so as to assure continuing public confidence of fairness of elections and governmental processes, RCW and so as to assure that the public interest will be fully In Mh div- - ii 17 In srit1itiett,Rcw 42.56.270 eerteiri closure, however, this ohaptershall be enforced so Mririerrcisir commercial, and proprietary irii?ormotiori?? GS to insure information disclosed nOt mm diScl0su1oc_ And prescribes be misused for arbitrary and capricious purposes procedures to protect g-om public disclosure, and copying, records filed with the WUTC or the attorney RCW 42.17.010 (emphasis added.) As is apparent general that contain "valuable *108 commercial in- - from its` plain language, the Public Disclosure Act formation, including trade secrets or confidential focused on the efficient administration of government, marketing, cost, or financial information, or custom- fair dealing by elected representatives and public e1?-specific usage and network configuration and _de- officials at all levels of govemment, and the public's sign information." access to pertinent govemmental information. 3. House Bill 1478 . *107 2. 2005 Public Records Act, chapter 42.56 1[ 18 During the 2007 Regular Session ofthe 60th 1 15 In 2005, our State Legislature recodified Legislature of the State of Washington, House Rep- . portions of the 1972 Public Disclosure Act as chapter resentatives Jeff Morris, Larry Crouse, Dean Takko, 42.56 RCW, which became known as the "Public John McCoy, Jim McCime, Kenney, and Kelli Records Act." RCW 42.56.020. Requiring liberal Linville int1?oduced House Bill 1478. House Bill 1478 construction ofthe Act, RCW 42.56.030 declared: proposed amending RCW 81.88.080 to allow disclo- - sine of only 1:24,000 scale maps to general requestors The peepie-et this state tie not yield their sover- <>EUR1>ir>?li?? Public Act- eignty to the agencies that serve them. The people, *478 Pl'0V100d m0l`0 Sh?P0m0 in tieiegetirtg authority, tie het give their ptthiie dm fll?> 10001 people to know and what-is not good for them to md Such 89 know. The people insist on remaining informed so 0**0 law P0l'S0?ll0l? . that they may maintain control over the instruments that they have created. This chapter shall be _liber- . D. Public Requests for Disclosure of Pipelines' ally construed and its exemptions narrowly con- "Shapefile" Data strued to promote this public policy. 1[ 19 In response to proposed House Bill 1478, the . Bellingham Herald and other member newspapers of ii 16 Nevertheless, the Legislature Allicd D?ily Em (N?w?p?p=rs) tiled rv- exempted several categories er records and types er - with the WUTC information from disclosure under the Public Records - Act. One such exemption is for "[r]ecords filed with Other member newspapers of AHied the utilities and transportation commission or attorney Daily Newspapers include The Seattle general rmder RCW 80.04.095 that a court has de- Post-Intelligencer, The Seattle Times, and termined are confidential under RCW 80.04.095 The Tri-City Herald. RCW Another exemption is for infor- to 0l' Access to and a copy of all geographic information . to :**449 ?l1*1S?*0r 0l' to system data compiled by the re- . garding hazardous liquid and gas pipelines in Whatcom County as well as underground location significantly disrupt the conduct of government or information and maps of pipelines fiom hazardous 0 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. - SF-00242 PRR-2011-00450 - 168 P.3d 443 Page 8 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 - . (Cite as: 141 Wa h.App. 98, 168 P.3d 443) . liquid pipeline companies and gas pipeline compa- position to the ?Pipe1ines' injunction requests. nies with interstate pipelines, gas pipe- . lines, or gas transmission pipelines in Whatcom - inthe Newepenenn County- motion to intervene. - Clerk's Papers (CP) at 109. Jean Buckner, of 3; 1 . Committee Pipeline Safety,mL submitted a sim- hearing, the trial eeurt greeted the Newspapers. me_ :11:rmr?qu?sL S??kmg th? m?r? d?t?u1?d tion to intervene. The Pipelines argued that three state statutory exemptions prevented the WUTC irom dis- closing the requested - shapeiile data: (1) RCW Buckner serves vn this committee with 42.56.270,mL me Public Records Act exemption for 11yn? WUTC Pip?1i?? S?f=w anenoiei, commercial, and pigienny valuable in- Analyst fn? n?n' formation; (2) RCW 42.56.420, the Public Records fyins WUTC's Act exemption for information Plans nn ins snsP?nl? dats- to prevent or torespond to criminal terrorist acts; and (3) RCW 80.04.095, the Pipeline Safety Act provision Buckner seeks electronic under which a court can determine that certain oth- database that containing [sic] Pipe- erwise-public records are confidential and not subject line/Facility information, to include all the to disclo ure under Chapter 42.56 RCW if such dis- tmderlying Pipeline/Facility data." CP at 106. closure would result in private loss. The Pipelines also - argued that the shapetile data sought by the Newspa- 1] 20 As required by RQW 42.56.540, the WUTC P?1's md B??1s??r Was ??n1?st ?X?mPt" ins - notified the affected Pipelines or these non- Fr=?d?m of Act. . first-responder requests for detailed pipeline shapeiile data and of the WUTC's intent to disclose the re- Formerly RCW 42.17.3 quested data unless the Pipelines obtained a contrary court order or the Newspapers and Buckner withdrew Eneeted in 2005, egeedve July 1, 2006_ thei1? requests. 1] 25 Ruling these exemptions inapplicable, the . H- trial court denied the Pipelines' request for a prelimi- 11 21 F?ni't??n PiP?lin? ??n*Psni?s OY nary injunction and ordered the disclose the actions to enjoin the Mm disclosing the requested Shmeile data to the Newspapers and to requested pipeline shapetile data: Northwest Gas Bueknen - Association, Olympic Pipe Line Company, Chevron - Pipe Line Company, Northwest Terminaling Com- B- Appeal i2""Y? BP Wm LLC- 1] 26 The Pipelines On March so, our . Lm? C?mpany* Im?1?? Aluminum C?rp?mu?n* court commissioner stayed the trial court's order that lowstone Pipe Line Company, ConocoPhillips Pipe the WUTC disclose the ehepeme dem te the News_ Lim Team papers and enenie. In of ne pnoiie interests C?rp?L:?uqu* V?l?r? involved in the matter, our commissioner accelerated B-R Pipelme Company, and KB Pipeline Company. review The trial court consolidated these cases. . . . - *111 1] 27 The following parties have iiled briefs 22 On E?bmary 16* 2007* mal mutt Slgricd on a eel: Appellant Pipelines, Respondent the first of several agreed temporary **450 restrammg end Imewener Newepepem We else orders, and it set a_preliminary injimction hearing for two amicus eulgiee briefs: (1) ee behalfet-the 16* Pipelines, an amicus brief irom the American Petro- . leuin Institute LNLL and the Association of Oil Pipe 1] 23 On March 12, the Newspapers filed a motion Lines; Bill end (2) en- behalf of the Intervcnor News- to intervene,m1 to which they attached a brief in op- (C) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. sF-0024a - PRR-2011-00450 168 P.3d 443 Page 9 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 - (Cite as: 141 Wa h.App. 98, 168 P.3d 443) papers, an amicus brief from the Washington Coali- not be readily available to those, like saboteurs, who . .- tion for Open Govemment.m?' The WUTC and the would use it to jeopardize public safety. **451 Res- Newspapers have tiled Responses. olution of these contlicts involves issues of first im- - pression. - Although the Washington Attomey . General tiled briefs on behalf of the WUTC, *112 1[ 29 First, in denying the Pipelines a pre- . he did not advocate that the requested liminary injunction and ordering .the WUTC to dis- - shapefile data falls either within or outside close the requested shapetile data immediately, did the exemptions to the Public Records Act. Nor trial court violate CR 65(a) by (1) contlating a per- did the Assistant Attcmey General appearing manent injunction trial into the preliminary injunction . for the WUTC at oral argument answer o1u? hearing without giving the required notice to the par- direct questions about this critical issue. In- ties, and thereby (2) rendering a fmal determination stead, the Assistant Attorney General ad- . only fotu? days after allowing multiple new parties to hered to the position that the plain language intervene, without giving the Pipelines an opportunity of the Public Records Act requires the to prove their claims at a trial on the merits? WUTC to disclose requested information unless a court orders otherwise; he did not aj 30 Second, in denying nmn?m,?nn?, enlighten te ns nbentthe St?te'? intetptetetlen are the trial cotut apply the wrong proof nf the _PubHc Act cl' its lc8l$1?tiVclY and err in failing to iind a "like1ih0od of success on the presenbed - merits" when it decided the Pipelines had not shown - that the requested shapeiile data falls under any Public FN1 1. The American Petroleum Institute is a Records Act exemptions, in particular, the terrorist i "non-profit, trade association headquartered exemption? in Washington, D.C., that represents over 400 members in ell neveete ef the 1{ 31 Third, does federal law preempt application - petroleum end ant industry-" API er Washington's Public Records Act with respect to Amiene Bl'- nt 1- WUTC's release of pipeline shapetile data, especially, for example, shapetile data for pipelines serving fed- FN 12. The Association of Oil Pipe Lines is eral military bases? "an unincorporated, non-proiit trade associ- - ation representing 49 oil pipeline compa- Standard 0fR_cvicw nies." API Amicus Brief at 1-2. 1I 32 pipelines the WUTC - . agreeamuand Intervenor Newspapers do not dispute . FN13. The Washington Coaliti_on for Open that the applicable standard of review is de novo. In Government is "an independent, nonpartisan support they cite RCW which provides: organization dedicated to promoting and - defending the public's right to know in mat- 0fApPc1laut at 2j_ I - ters of public interest and in the conduct of . the public's business." WACOG Amicus Br. FN15. Br. at 11. at 1. ANALYSIS Judicial review of all agency actions taken or chal- i . . lenged under RCW 42.56.030 through 42.56.520 - 1] 28 This appeal presents several important con- shall bc do novo. Courts Shan take into account the flicts between the public's right to access information policy of this chapter that me and Open cxamimb and tion er public records is in the public interest, even duty t? Pr?t??t th? p?t?nm? t?lT?mt we though such examination may cause inconvenience - . both locally and nationally. Here, certain spe- or to public officials or Others. 2 gnkzed and d?ml?d ebgu; gasagld Comts may examine any record in camera in any a lc to ghussc who pls: gu dz proceeding brought under this section. The court other hud, this highly Shapcmc must may conduct a hearing based solely on affidavits. 0 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. - SF-00244 PRR-2011-00450 168 P.3d 443 Page 10 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 (Cite as: 141 Wasl1.App. 98, 168 P.3d 443) RCW *113 See Proggessive Animal 1 35 Here, the trial court did not expressly inform the parties that it was consolidating the preliminary hearing with a permanent injunction trial on 1993 - (Thc 913991*9*9 rwicws are merits under ca ssgelgzl. Yet, ordering are th? t??1 ?f an wusht midst wurc to disclose the r?1pe11rree? shapeiile data to are the Publrc Records Act where the record Newspapers and Bnekner, irisl eonrr essentially 9* 1?w. 9*19 9**19* considered and finally resolved the merits of the Pipelines'claimsatthe preliminary hearing, ds at which ?it erroneously applied the perma- nent-injunction standard of proof; contrary to CR 65. H. CR 65 Violation 111 tl 33 Tin P?r>?1m?q Quit th?_ com [el ll 36 As the Pipermee note, (1) they were rm- 9**9*1 1*1 **19 able to develop their evidence fully for the preliminary mil f?r - injunction hearing because er me expedited . 1*1]*1*19*1911 W1*l19*1* *19*199 *9 **19 timeiiame; (2) the Pipelirfes provided the trial court (2) 111 *19 **19 with numerous substantive declarations showing some - 91111*19**} d9*1Y1*1$ **191* of the evidence they were preparing to present at a 9 **19 permanent injunction trial on the merits; and (3) the status quo and ther to mer court's order that the wurc disclose me shape- sent evrdence at a trial on the merits; and (4) in farling ille dere following this procedure defested . to consider firlly whether federal law, including the the pu;-pose of a preliminary injunction-to preserve the . of Act GXCHIPHOHS, smtus quo mu compilgs [hg gyi. - 9* *999* $9**19 9* *99 11*1** dence necessary to establish the need for a permanent Buclmer's requests for disclosure of pipeline shapeiile ininnetion, to be proven at iinnre irisl on ilie rnerirs_ data under Washington's Public Records Act. We - FNI6. The *'status quo" means the "last ac- i tual, peaceable, noncontested condition . 1[ 34 CIVII Rule 65 governs mal court pro- wliieli pr?cedcd the pending f?r <>1>t?im?s The sm- Gee rez. ce. ofthe Nw. r. were Unzr. sr . 9*91*5* 9198*93393 **9111 9*99*3 *9 Tramp, Comm ts, 104 Wash.2d 460, 466, 706 . 111]*1*19*1911 *9 QB P.2d 625 (1285), quoting irom Stare ex rel. 65(a)g2) provides, however, that "[b]efore or alter the pm! Less Drug Stores Snoop 2 commencement of the hearing of an application for a 523 529 gg p_2d 680 - i preliminary injunction, the court may order the trial of the action on the merits to be advanced and consoliPersuaded by the P1pelmes' arguments, we hold that are mer court erred when ir contlated are hearmg. CR But [1]f court does not ex- inn) inn nrninninnrv nn -- Emily my It um junction hearing without notice to the parties, contrary ni?-lmlg CR-65, and issued a final order on the merits only M1 ?n mm f0l11' days after allowmg new parties to mtervene, Voters-v. Coungg Records Lzcensmg Electzon givng the Original ,,115 inn *33 ash A .383 133 333 present errderree erdreprevedrerr reepeerrve (20061. The *114 purpose of rule, as with merits Wn Inverse . federal counterpart, is to give the parties **452 notice that th 'll ha full - . iier eereiyelmde pgrirlrrerrirli. nt 33 nW?= hse junction hwins- See rraegr, 451 us. 390, sos, 101 sc:. 1830,68 L,Ed.2d nm umm (applying no QQEL which review the record de novo, address the requirements . (C) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. sF-00245 . PRR-2011-00450 168 P.3d 443 Page 11 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 (Cite as: 141 Wa h.App. 98, 168 P.3d 443) for injunctive relief} hold that the trial court erred in dress each of these three injunctive-relief require- refusing to issue a preliminary lI1j\l11CtiOI1,EEu reverse ments. the trial court's order that the WUTC release the re- quested information immediately, and remand for a l_ Cleei- legal ei- equitable iight nie! on the rneiits of the Pipelines' request for per- ll 41 a cram legal or equi- . table right," "the moving party must show that it is likely to prevail on the merits." San Juan Coghg v. No FN17. In reviewing the request for a pre- New Gas Tax, 160 Wash.2d 141, 154, 157 P.3d 831 injunction de novo and applying the (2007). Here, the Pipelines sought to establish a right required legal standards, itis not our intentto to exempt their shapeiile data from general public imply that we are prejudging the ultimate disclosure through three alternate legislative exemp- merits ofthe case. On the contrary, we expect tions under the Public Records Act. We hold that the that the parties will litigate and the trial court Pipelines' offer of proof to support the so-called "ter- will decide the merits at a permanent injunc- rorist" security exemption under RCW 42.56.420(1) is tion trial on remand. . sufficient to support issuance of a preliminary injunc- tion and to proceed to a trial-on the merits of the 111. Public Records Aa-rnjumuve neuer Pi1>e1ines'requesi for wen seared mr obtain in- env of the exenipdons ther they con prove ei dun time- . - itmcave rene; parsers must (1) he has a Therefore. we eddress this security exemption in iiehi near legal or equimbre ngm; (2) he has of which takes into account the well-grounded fear of immediate invasion of that right Publi? by the- entity against which he seeks the injunction; and (3) the acts about which he complains ar?e either 1[ 42 The Pipelines asked the trial court to enjoin resulting or will result in actual and substantial injury the WUTC from disclosing the shapetile data under to him. Zjgler Pige Indus. v. Deg't oi Revehye, 96 RCW 42.56.540, which protects public records from Wash.2d 785, 792, 638 P.2d 1213 (1982). The plain- disclosure when "examination would clearly not be in tiff must satisfy these three basic requirements re- the public interest and would substantially and irrep- gardless of whether the injunction he seeks is tempo- arably damage *117 any person, or would substan- rary or permanent. Federal Why amih; Physicians v. tially and irreparably damage vital government func- 5 Tacoma Stands Ug for Lite, 106 Wash.2d 261, 265, ti0ns." RCW 42.56.540. 721 P.2d 946 (1986). 1[ 43 In support of their position, the Pipelines A. Preliminary Injunction-Likelilrood of Prevailing at submitted more than 20 declarations irom Northwest Trial on the Merits Gas Association members and other industry repre- 1[ 40 A preliminary injunction serves the sentativesmu These declarations assert that (1) the . same general purpose as a temporary restraining or- Pipelines' natural gas pipeline system "cor1stitutes part . der-to preserve*116 the status quo until the trial court ofthe critical energy inn?astructure" ofthe state and of can conduct a full hearing on the merits of the com- the northwest region of the United States, and (2) plaint. McLean v. Smith, 4 Wash.App. 394, 482 P.2d "[t]he incapacity or destruction of the regional gas - 798 (1971); **453State ex rel. Ph); Less Drug Stores pipeline system would have potentially catastrophic v. Suttoh, 2 Wash.2d 523, 528-29, 98 P.2d 680 (1940). consequences for economic security and public afe- At a preliminary hearing, the plaintiff need ty." CP at 44. The Newspapers do not refute these . not prove and the trial cornt does not reach or resolve assertions. The Pipelines raise serious issues of pro- the merits of the issues underlying these-above three interests, public safety, and national security_ requirements _for injunctive relief Qyler Pipe, 96 involved in the public release of highly sensitive, Wash.2d at 793, 638 P.2d 1213. Rather, the trial corut detailed, proprietary pipeline shapefile data. None- considers only the likelihood that the plaintiff will theless, the trial court addressed and rejected the ultimately prevail at a trial on the merits by estab- Pipelines' claim that the shapeiile data fell witlrirr lishing that he has a clear legal or equitable right, that RCW the exemption relating to security. he reasonably fears will be invaded by the requested disclosure, resulting in substantial harm. We ad- i:Nlg_ we gi-emeii the pipelines- to 0 2011 Thomson Reuters. No to Orig. US Gov. Works. SF-00246 . PRR-2011-00450 168 P.3d 443 Page 12 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 . (Cite as: 141 Wash.App. 98, 168 P.3d 443) supplement the record to include the decla- the shapetile data is collected under Washington's ration of Jack Fox, the General Manager for Pipeline Safety Act, which the Legislature enacted the Pipeline Office of Transportation Sector before enactment of the RCW 42.56.420(1) security Network Management, Transportation Secu- exemption provisions; (2) thus, the information is 1?ity Administration, United States, Depart- collected and maintained to assist first-responders in ment of Homeland Sec1u?ity. protecting the public safety, regmdless ofthe cause of the pipeline catastrophe, terrorism or otherwise; (3) . mic. Fer example, George nine, chief err- ilicpcfilc dcic wculd q??1ify as "infcr- ginger for Mcchol-d Coq asserts in mation assembled, or to . iris declaration iirei at least er ure re- qi i9 crily pcnsiruc- . snapetiie data concerns pipelines tion of Public Records Act exemptions, which broad serving bases_ construction the Legislature has not permitted, RCW - . 42.56.030; and (4) as aresult, RCW 42.56.420(1) does it 44 RCW pmvidss, Esta exempt public disclosure of the pipeline shapetile Although eur review is de rreve, irr set- ting forth our holding and supporting rationale, we me enabled pe renews: re queiiry for ure izcw 42.56.420(1) secu- spond to criminal terrorist acts, which are acts that my im-Ormstion must have . significantly disrupt the conduct of government or iuitisuy sxsiusivsiy or primarily to of the general civilian population of the state or the combat tmmism, sud i United States and that manifest an extreme indifpthered to protect the pubhc trom ferenceto human life, the public disclosure of which n0n_m_m1,ist pipeline sud pipsiins gigiij yp ?i ir cannot new quarry under ire rem. 4 ism--security exemption, even if it is currently main- tained *119 for that non--exclusive purpose. Although, (8) SP??1'fl? md as the trial court notes, courts should construe Public 01 md umquc 91 d?P1?Ym??t Records Act exemptions narrowly, we view its ra- including ccinpilcd *118 dcic tierreie here as me narrow errd with dur - collected in preparation of or essential to the as- Legisiatni-eos intent in enacting the seeniity sessments, or to the response or deployment plans; to the pnbiio Records Aot_ and 1[ 47 It is well-settled that we interpret statutes to -- Reccrd-v nci~inl>1cci avoid absurd results. gate v. JP., 149 Wash.2d 444, . fgdercl that Slicrcd cr inicmc- 450, 69 P.3d318 (zoos). iicrwl cad exempts ii?om disclosure under ure 1>u1>>1ie Act - iicm sccimiy b?cii?s? prcvidcd ic mic cr er records assembled, prepared, or mem. local govemment officials related to domestic pre- tained to pi-event, mitigate, oi- i-esnond to eiiniina] pnicducss ncis cf terrorist (Emphasis added.) dur view, ii would be absurd to read this provision as an expres- (Emphasis added.) sion of the Legislature's intent to exempt ii?om public disclosure only information collected solely to combat it 45 Noting that the pnbiie Records security terrorism, when the WUTC ciurently maintains this exemption statute is new and, thus, presents an issue safllf *9 mltigawr 01 ic of impression, the trial court analyzed two issues: 8?tS?" legislative intent, and whether the shapefile data was . assembled, prepared, or maintained to prevent or to 1[ 48 It iivould be similarly absurd to read RCW respond to terrorism. The trial court reasoned that (1) 42.56.420(1) as an expression of the Legislature's I (C) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. s1=-00241 PRR-2011-00450 168 P.3d 443 I Page 13 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 (Cite as: 141 Wash.App. 98, 168 P.3d 443) intent to allow public disclosure of the shapetile data likelihoodthat they will be able to prove at trial that simply because the WUTC initially collected some, or keeping this shapetile data out of the hands of poten- even all, of the second-tier attribute-level pipeline tial pranksters and terrorists is also critical to provid- . data, irom which the WUTC assembled the shapeiiles, ing for the public safety, especially when individual to assist iirst responders in combating non-terrorist homeowners, developers, and others seeking pipeline threats to public safety, such as earthquakes, site-specific pipeline-location information can obtain -- floods, and tires. Such anmrow reading of this section what they need through the One-Call System. The - would ignore that the WUTC currently maintains this Pipelines' shapele data would thus meet the statutory shapetile data "to prevent, mitigate, or respond to definition of infomration exempted irom disclosure .. criminal terrorist acts," RCW in addi- due to the threat of terrorism. See RCW tion to assisting first-responders in combating natural supra. pipeline-related disasters. 1{ 52 Therefore, we hold that the Pipelines have - ii 49 The declarations that the Pipelines submitted met their preliminary injunction burden of showing a at the preliminary injunction hearing establish the likelihood that they can demonstrate at trial a clear I Pipelines' intent and likely abilityto prove at atrial on legal or equitable right *121 to an exemption &om the merits that first responders need access to this disclosrue under the Public Records Act of at least . shapefile data during pipeline catastrophe to facilitate some of the requested shapeiile data. locating and shutting down, where necessary, pipeline velves end re pinpeinr quiekly end ie step 2. wnu grounded ren nr leaks of hazardous, volatile substances. That this ui] ii 53 We next address die second iniunetive shepeille dere is eririesl re first *120 responders slul- nrun that i*Y *9 *91 **18 Pu*1*ic 88*8*5% 1888*9*888 9* **18 the Pipelines will be able to prove at the permanent . insuurnerueliry preeipinulns pipeline erresuephe. trial that will result in an 8988 119*, 88 8 1118**81' 9* 98*88* **18 *?iP8*i1188' invasion of their right to keep at least some the re- 8*1i*i*Y *9 **18 8*8*11*917 88cu1'i*Y 8* quested shapeiile data coniidential. The Pipelines' EV811 i* **18 PiP8*i1188 91`iSi118**Y P1`9Vid8> W8 i11c*ud88 9* prove at trial that they would sustain irreparable injury records assembled, prepared, or maintained to pre- if the trial court did not preserve die Status que by vent, mitigate, or respond to criminal terrorist acts. prcliminarily enjeining the WUTQS of the (8111P*188i8 88889)- **18 shapefile data while the parties prepared for a trial on *u1'8?8 1188 9* **18 8911.lu11c*iV8 the merits of the Pipelines' request for a permanent . **18i1' *9 1*11*188*8 9**9 injunction. The Pipelines demonstrated, for example, respond re renerlsr sets ir sufficient re quslify rluu that rr the wurc the srnpenrn ann, as me information for the security exemption, even if these nie] eeuri erdei-ed, end the pipelines then at . were ner inidelly essernbled er prepsred fer nrnr, an Pipelines will not be nbre to an . 8118*1 888u1`i*Y re ulting from the disclosru?e because, once released, the shapetile data cannot be retrieved and`retumed to a ii 51 Similarly, the Pipelines have established a protected or confidential status. - 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. SF-00248 PRR-2011-00450 - 168 P.3d 443 Page 14 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 . (Cite a 141 Wash.App. 98, 168 P.3d 443) ping System, for example, provides uninhibited public it 55 Under these eireuinstanees, prcyailing at a - access to detailed pipeline information nationwide. eh the ments would be meaningless for the Pipe- This publiely-available infermatien ineludes lines and for the nuhiie, vvhern the Legisiaturers ex- street-level location of pipelines, of the emption seeks to *122 protect. 1ttepst--sh1e damage eemmedities transperted inthe pipelines. aud eentaet vveuhi ah-eadv have occurred when the WUTC re- infomation for the relevant pipeline companies. With leased the shapetile esta following the trial this natienal pipeline map, any member ef the general . . denial of the Pipelines' request for a preliminary in- public can learn precise locations of all pipelines - jtmetieh. We hem, therefore, that the Pipelines have earrying hazardeus materials threugbeut the United also met this third requirement for ht- States, ineludina the State ef Washiugten- junctive relief - 1[ 5 9 In addition, as we have previously noted, the Competing Equities public can access necessary pipeline details for spe- ti 56 Finally, we nute that heeause in. properties and locations as needed through the I junctions are addressed to the court's equitable pow- SY$t?m- And the. WUTC prevides ers, the court must examine the above three prelimi- data te first tll0S? te narv iniunetieu requirements in light of coumcting we have delegated the responsibility for protecting our - equities. Zgler Ptse, es at yes, ess 1>.2t1 publie safety the faee ef miner. as well as peten- This examination includes balancing the teh- tially eatasirephie. disasters invelving pipelines tive interests of the parties and, where appropri- Sits mid ?lh?l' That ss here, the interests of the public. sential pemens ef the requested pipeline infer- 792, ess 1213. Here, these equitable .factors matien are available te the publie fer weigh in favor of granting the preliminary injunction usc ?lSh$ h??Vl1Y f?V?l' ef Sl`??li?S . to the ststus quo uhtu stu tthti eh the meats the preliminary injunetien against diselesure ef the er the Pipelines' claimed exemption er the shapetile mere detailed shapeiile pipeline data te nen data from disclosure under the Public Records Act. ii sv We recognize the hhpetteht and fundamental lt_ is this publielv available mapping nature of the public's right to know about the inner mF?lm?u?? that mal m?Y have workings of our government, especially in the State of iis data- Washington, where we citizens have historically and consistently demanded transparent and open govem- 1[ 60 In light of the high level pipeline mapping ment to aHow public oversight. PA WS, 125 Wash.2d current availability, we fail to see how at 251, 884 P.2d 592; Echoing t11e United States Su- the Newspapers, Buckner, or the public would sustain preme Court, we also recognize that "o1u? citizenry has injury irom the issuance of a preliminary injunction a legitimate and substantial interest in the conduct of against disclosure of the shapeiile data until there can [certain private institutions], and freedom of the press be a tiill trial on the merits of the underlying facts and to engage in uninhibited debate about their involve- issues. Neither the general public's safety nor our ment in public issues and events is as crucial as it is in citizens' need to oversee governmental will the case of 'public ofHcials.' Rosenbloom v. be harmed if disc1osm?e of the shapetile data is post- Metromedig, Inc., 403 U.S. 29, 42, 91 1811, 29 poned pending the permanent injunction trial. L.Ed.2d 296 1971 quoting Publishing C0. v. . Butts, 388 U.S. 130, 163-64, 87 1975, 18 *124 it gi In contrast, the reenrti shows that the the Pipelines have demonstrated significant potential - . dangers to public safety if detailed shapetile data, such as cathodic protection test site and valves, pipeline 1[ 58 In assessing the relative harm to the parties diameter, and metering facilities, are disclosed to the resulting from the WUTC's disclosure or nondisclo- Newspapers and Buckner, and trom them to the gen- sure ofthe *123 Pipelines' shapetlle data, we tirst note eral public. The shapetile data, once released, cannot that detailed pipeline location maps are already be retrieved to protect it &om pranksters, saboteurs, available to the public. The National Pipeline Map- terrorists, and others who might seek to use these 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. - SF-00249 PRR-2011-00450 168 P.3d 443 Page 15 - 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep; 2345 (Cite as: 141 Wash.App. 98, 168 P.3d 443) highly detailed pipeline specifications for disastrous FN22. A certified state authority, such as the pu1?poses. WUTC, may adopt more stringent standards for intrastate pipeline facilities and owners if qt 62 Having balanced tna equities and having. there rene ere eernpeiible with examined the three preliminary injunction require- 60104 9- ments while reviewing the record de novo, we hold . that the equitable-factors weigh in favor of issuing the 1[ 64 As we previously noted, the Federal Pipeline preliminary injunction and that the Pipelines have met Safety Act preemption clause precludes states from . - their burden to warrant issuance of a preliminary in- establishing separate safety standards for interstate by establishing: (1) the likelihood**457 of pipeline facilities and interstate pipeline transporta- proving a clear legal or equitable right at a trial on the tion. 49 U.S.C. 60104t But the parties have not yet merits, (2) a well-grounded fear of imrnediateinvasion had an opportunity to present evidence about whether of that right, and (3) that an actual or sub tantial injury the pipeline shapefile data at issue pertains to intra- will result if no injunction issues. state or interstate pipelines mg within the federal - Pige, 96 Wash.2d at 792, 638 P.2d 1213. We hold, meaning of these tems. - therefore, the trial corut erred in denying the Pipelines' . reqneer fer prelirninery ininnerien end in erderina FN22. rat nnatnpra, tha anatntiva nnaatnt of . rlre WUTC re rlre pipeline elrepetle dere tna Gas Association stated in his without first allowing the Pipelines an opporttmity to that pipeline systems that the prove their case at a trial on the merits of their request WUTC pm-t of the ct-it- tb? ininneiive ical energy infiastructure in the state of Washington and the Pacific Northwest." . IV. Federal Preemption Thus, we view this declaration together with . 1[ 63 Altematively, the Pipelines argue that numerous other ofthe Pipelines' declarations federal law preempts state law in matters of gas and as off`ers of proof that the shapeile data is hazardous material pipeline safety and, therefore, interstate in natrue, not merely innastate. . federal law controls, regardless of how we might in- This is, therefore, another issue for the par- -dependently interpret Washington's Public Records ties to litigate at the trial on the merits on Act. First, the Pipelines assert that release of the re- remand. CP at 33. - . quested shapefile data directly conflicts with federal peliey prereeiins Neiienel Pipeline 1[ ss mt mn, we cannot tina federal Date end Such data- preemption issue until such time *126 as the parties cond, th? PtP?tt??$ ?l'Sl1? that have an opportunity to develop a firll record at trial. preempts- disclosure of the pipeline shapefile data . under our state's Public Records Act because (1) tt- umm., U.S.C. 60117(d) prohibits disclosure of information lglamdous gathered by a federally-authorized agent under the - - . rtana saatata Att; and (2) tna wurc gathers anna- mem as dential' hanf . .. .. 4 that na natan tnnanna saraty na preempts portions ee nvelee mire- of our state Pipeline Safety Act. 49 U.S.C, 60l04?c). . (A) used to transport gas; and "[T]he Pipeline and Hazardous Mate- nan Safety ta- (B) enlrieet re the Jnrredienen ef the ntnata access to tna [rtatrnnar Pipeline Map- Cernrnieeren under the Nernrel Gee Aer (L2 ping System] to federal, state, and local [-717zl government agencies (including emergency responders)." PHMSA Office of Pipeline (7) "interstate hazardous liquid pipeline Safety website. CP at 232. facility" means a hazardous liquid pipeline - facility used to transport hazardous liquid . 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. - SF-00250 . PRR-2011-00450 168 P.3d 443 Page 16. 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 (Cite as: 141 Wash.App. 98, 168 P.3d 443) in interstate or foreign commerce; 122 Wash.2d 299, 326, 858 P.2d 1054 (1993 (8) "interstate or foreign commerce"- FN25. Addressing the issue of federal preemption, the trial court followed the rea- 59; In PAWS, plaintiffs sought disc1os1u?e of batw lac - lac documents Hled in connection with an un- ggtsida gtgtaa fum a me an 8 funded grant proposal. The University ar- gued that the Federal Freedom of Infor- .. . . ti Act, 5 U.S.C. 552, preem d' - (11))*111* ZTZ61Y16 61 the 66116111 S11 125 Wash,2d at 265-66, 884 1161 566. 61111 . Supreme Court reasoned that the Federal (B) 1166616111 61 111161111611611 A61 did l'l0t 1116611161 0010010100 b?1W??11' state law in the facts ofthe case because (1) it . does not contain an express preemption pro- ?a place in a State and a place outside vision; (2) does not "so comprehensively or that State; or pervasively occup[ie the field of public disclosure as to raise a colorable claim of (11) 11166661111116 661116 s16161111611g11 6111666 611161616 1116 State; (3) ??1y to f?<1?r?1 . 266, 884 P.2d 592. (9) "intrastate gas pipeline facility" means . a gas pipeline facility and transportation of R01Y1118 011 MLS. 1110 111111 001111 110111 11181 gas within a State not Subject to the juris. the Federal Freedom of Information Act diction of the Commission the Nat- 00011 1101 01$010$111'0 01 1110 11161 G65 A61 (1s U.s.c. 717 [-7176] dw statutory - exemptions It had already rejected because - .6- . - - did not expressly preempt the state Pub- (10) mtrastate hazardous 11qu1d p1pGl11'l? 1F facility" means ahazardous liquid pipeline hc D1s?1?s1u? Act and did mt *31111 to facility that is not aa hazardous state agencies. Nonetheless, the trial court liquid pipauaa facility, also noted, PAWS does not n11e out the possibility that a certain federal statute in a **4ss 11 66 111 6111 v16w, 111 d6I1y1I1g 1116 1?1p6111166? request for a preliminary injunction, the trial court - - - ruled prematurely on the federal preemption issue. mg :;aal;1pt Accordingly, we remand to the trial court to reex- Qitackaowladgaa aathm, Statutass amine whether federal law preempts disclosure of axamptiaa some or all of the requested pipeline shapefile data under federal law, including the Federal Freedom of Information Act. By way of guidance, we note that In 111?*1??111111?| sf w11611111g1611 66111116 116161 11161 16116161 111661111111611 61 E1 ?a aa Ta'?f1?0a 1;*1 Ss - state law may occur if (1) Congress passes a statute mf agiguglg 6 pl-??mp' - expressly preempting state law, (2) Congress usfu ??l;ls?S ?n preempts state law by occupying the entire field of pm` 16g111611611 616 116111611161 611111661, 611 (2) 61616 *127 law conflicts with federal law as a result of the impo i- tadbility of simultaneous compliance with state and fed- I m?s' an _1t cs sammy mmsums eral law or when state law acts as an obstacle to the t? Pl-went an qc! causc accomplishment of the federal purposemz? Wash. gag - (em hasis added) A how- State Pgsicians Ins. Exch. Ass'n v. Fisons Corp., gm C) 2011 Thomson to Orig. US Gov. Works. - . PRR-2011-00450 168 P.3d 443 Page 17 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 (Cite as: 141 Wash.App. 98, 168 P.3d 443) ever, we leave the trial court to decide this issue based on the evidence and . the parties present at the trial on the merits of - the Pipelines' action for a permanent injunc- tion. - - Conclusion 1[ 67 We hold, therefore, that the trial court erred when (1) it consolidated the permanent injunction trial with the preliminary injunction hearing and issued a final ruling without notice to the parties _as required under CR 65; (2) it excluded from its consideration the Pipelines' declarations, which offered the proof they - planned to present at trial on the merits to show that the shapeiile data qualified for an exemption H?om disclosure under the Public Records Act and thereby demonstrated a likelihood of establishing the re- - quirements for issuance of a permanent injunction; (3) it foreclosed the parties Hom presenting evidence at a trial on the merits pertaining to Public Records Act exemptions and federal preemption; (4) it denied the Pipelines' request for a preliminary injunction without balancing the equities and interests of the parties and the public; and (5) it ordered the WUTC to disclose the requested shapefile data, foreclosing the Pipelines' opportunity to prove their case at trial. 1[ 68 Accordingly, we reverse the trial court's or- der that the WUTC disclose the reque ted shapefile data and the trial courts denial of a preliminary in- junction. We remand to the trial court to issue a pre- liminary injunction enjoining the WUTC's release of the shapeiile data and to conduct a *128 trial on the merits of the Pipelines' reque for a permanent in- We concur: BRIDGEWATE P.J., and QUTNN-BRINTNALL, J. Wash.App. Div. 2,2007. Northwest Gas Ass'n v. Washington Utilities and 'I`ransp. Com'n 141 Wash.App. 98, 168 P.3d 443, 35 Media L. Rep. 2345 END OF DOCUMENT 0 2011 Thomson Reuters. to Orig. US Gov. Works. . PRR-2011-00450 . THE SUPREME COURT OF . NORTHWEST GAS ASSOCIATION, a NO. 80883+0 Washington corporation; OLYMPIC PIPE LINE COMPANY, a Delaware corporation; CHEVRON PIPE LINE COMPANY, a .) - . Delaware corporation, and NORTHWEST NO. 36057-8-H - TERMINALING COMPANY, aDelaware corporation; BP WEST COAST PRODUCTS, LLC, a Delaware Limited Liability Company - and INTALCO ALUMINUM . CORPORATION, a Delaware corporation; PIPELINE CO., a Washington corporation; YELLOWSTONE PIPE LINE . COMPANY, a Delaware corporation; and . - CONOCOPHILLIPS PIPE LINE COMPANY, - - a Delaware corporation; TERASEN PIPELINES (Puget Sotmd) corporation, a Delaware corporation; VALERO L.P., EE 23 PORTLAND GENERALELECTRIC ig gm COMPANY, an Oregon corporation, B-R - TQ mr c: PIPELINE COMPANY, a Delaware L-, ig`, 5 Qgij corporation, and KB PIPELINE COMPANY, an - ga- cl; Oregon corporation, . . E2 ig Ec: RespondentsWASHINGTON UTH..ITIES AND I TRANSPORTATION COMMISSION, A PUBLIC AGENCY, - . I BELLINGHAM HERALD and ALLIED . DAILY NEWSPAPERS, . _Petitioner?s. sr=-oozss . - PRR-2011-00450 Page 2 80883-0 Department I of the Court, composed of Chief Justice Alexander and Justices C. . . Johnson, Sanders, Owens and .. Johnson, at its July 8, 2008, Motion Calendar, considered whether review: should be granted pursuant to RAP and unanimously agreed that in the following order be entered. - IT IS ORDERED: i That the Petition for Review is denied. DATED at Olympia, Washington this Sm day of July,"2008. For the Court sr=-00254 PRR-2011-00450 . leg. . I . 1 Biheaelaomcxs 2 IUHAY SUPERIOR COURT WASHINGTON FOR THURSTON COUNTY 8 NORTHWEST GAS et al., 3 - . 9 Plaintiffs, CONSOLIDATED . NO. 07-2400321-STIPULATION ORDER FOR 11 WASHINGTON UTILITIES AND DISMISSAL - - TRANSPORTATION COMIVIISSIONDefendantSTIPULATION . - 15 Plaintifs Northwest Gas Association,__Olympic Pipeline Company, Chevron Pipe Line 16 Company, Northwest Terminaling Company, BP West Coast Products LLC, Intalco . 17_ Corporation, McChord Pipeline Co., Yellowstone Pipe Line_Company, Conoco 18 Philips-Pipe Line Company, Trans Mountain Pipeline (Puget Sound} LLC, NuStar L.P., 19 formerly Valero L.P., Portland General Electric Corporation, B--R Pipeline Company, and KB . 20 Pipeline Company (referred to hereinaiier jointly as "P1aintiifs" and individually as 21 "Plaintifl"); the Washin?ton Utilities and Transportation Commission ("Defendant"); and the - 22 Bellingham Herald and Allied Daily Newspapers (referred to hereinaiier jointly as 23 "Intervenors") in the abow e-captioned consolidated actions hereby stipulate and agree as 24 follows: - . 25 1. The 'P1ainti&, Defendant and Intervenors (collectively "Parties") in the 26 consolidated actions have settled the cases by entry of a Settlement Stipulation, dated April STIPULATION ORDER FOR DISMISSAL- 1 - . CONSOLIDATED NO. 07-2-00321-2, ET AL. LANEPOWEIL we . . - 1420 AVENUE, sums 4100 SEATTLE WASHINGTON 98101-2338 . 0l3(l00.0624Il83l653.l mx; 2062211101 . - I . 1 SF-00255 . - PRR-2011-00450 1 I I I 1 2010 ("Settlement"j, which Settlement is attached hereto as Exhibit A and incorporated 2- by referencePursuant to the Settlement, the Plaintiis hereby request voluntary dismissal of 4 their lawsuits with prejudice and without costs. Nothing in this Stipulationand Order of 5 Dismissal prohibits any Plaintiff either Iintervening in any litigation described in, . I . . 6 paragraph 13 of the Settlement or any litigation described inIparagraph 14 of the 7 Settlement"naraot A.prilZ?20?LANE POWELL Michael A. Nesterofi WSBA No. 3180 - - 12 - Attorneys for Plaintiffs - - . Chevron Pipe Line Corporation, Northwest 13 Terminaling Company, ConocoPhillips Pipe - . . Line Company, Yellowstone Pipe Line Company . 14 . MoChord Pipeline Company 15 I mar mvsas . gu .. .133,2.. (il . - . ey ser, WSBA No. 15466 . . . 18 . Vanessa Soriano Power, WSBA No. 30777 . Timothy L. McMahon, WSBA No. 16377 I 19 . Attomeys for Plaintiffs, - 20 - Northwest Gas Associahon Pipeline . Z5 - - .I STIPULATION ORDER FOR DISMISSALCONSOLIDATED NO. 07-2-00321-AVENUE, SUITE 4100 . - WASHINGTON 013000.0624/1s316s3.1.- 206.27.%.7000 FAX: 206.221%.7107 - I I . SF-09256 I - I II - PRR-2011-00450 - 1 - - DANIELSON HARRIGAN . TOLLEFSON LLP 2 . . . fwgan, SBA No. 01751 . - - . . - Christopher T. Wion, WSBA No. 33207 5 Attomeys for Plaintiff . - . Olympic Pipe Line Company . - . . . . 6 - - . . CASCADIA LAW, GROUP Stephen J. Tan, WSBA No. 22756 Tanya Barnett, WSBA No. 17491 - 10 - . - . Attorneys for Plaintiff - . NuStar LP, formerly Valero PERKINS COIE LLP . . Jason T. Kuzma, WSBA No. 31830 . 15 . Gina S. Warren, WSBA No. 39178 . . . Attomeys for P1aintiH` 16 Trans Mountain Pipeline (Puget Sound) LLC . formerly Terasen Pipeline Company 17 - . 18 I CABLE ILIUSTON BENEDICT . I - - - HAAGENSEN LLOYD LLP William J. Lehman, WSBA No. 35081 i Attorneys for Plaintiffs 22 BP West Coast Products LLC Intaloo - - Aluminum Company . STIPULATION ORDER FOR DISMISSAL- 3 CONSOLIDATED NO. 07-2-00321-2, ET - LANEPOWELLPC 1420 FIFTH AVENUE - - . SEATTLE, WASHINGTON 98101-2338 0130000624/1831653.1 206.2}.3.7000 SF-00257 - I - I PRR-201 1-00450 1 I an - . TOLLEFSONLLP . . i - . 4. - - A-EKEFW. . - . - T.Wi?CASCADIALAWGROUP . ANQN11StarLP,fo1?mpr1y Va1cr0LP . 12 - PERKINS COIB LLP - - Gi?aS. Warren; 39178 . Tmn.sM0untainPipc1inc (Puget Soxmdf0m1cr1y.Tm?asc11 Company . - -. 18 . - . CABLE HUSTON BENEDICT HAAGENSEN LLOYD - - . P1aii1tiSTIPTULATION FOR DISMISSAL- 3 n- I . CONSOLIDATED NO. 0742-00321-SF-00258 - - PRR-2011-00450 .1 DANIELSON HARRIGAN LEYH 2 TOLLEFSON LLP - . By - . - 4 . Artlgur W. --HEgan, WSBA No. 01751 Christopher T. W1on, WSBA No. 33207 . - 5 . ., Attomeys for Plaintiff 6 . Olympic Pipe Line Company - . . . 7 CASCADIA LAW GROUP StepHen l. Tan, WSBA No. 22756 - - Tanya Barnett, WSBA N0. 17491 . 10 Attorneys . - . - . - NUSTEI LP, formerly Valero LP . . 11 - 12 PERKINS COIE LLP 14 - . By . Jason . uzma, BA No. 31830 15 - 3 . Gina . arren, WSBA No. 39178 - Atto or Plaintiff 16 . - Trans Mountain Pipeline (Puget Sound) LLC . - . formerly Terasen Pipeline Company CABLE HUSTON BENEDICT . HAAGENSEN - WSBA No. 35081 . . . . Anomcys for Plaintiffs 22 BP West Coast Products LLC Intalco - . Aluminum Company . 23STIPULATION ORDER FOR DISMISSAL- 3 - . - CONSOLIDATED NO. 07-2-00321-2, ET AL. LANE p0wm_,Lp? . SUITE4100 WASHINGTON -98101-338 . mx; . SF-00269 - PRR-201 1-00450 1 . - QDANIELSON HARRIGAN TOLLEFSON LLP 4 - Krthur W. HEigan, WSBA No. 01751 . . Christopher T. Wion, WSBA No. 33207 5 . - . Attorneys for Plaintiff- - . . Olympic Pipe Line Company CASCADIA LAW GROUP By . .. 9_ Stephen F. Tan, WSBA No. 22756 . Tanya Barnett, WSBA No, 17491 - 10 - . - .. AttomeysforP1aintift`.' . - . . NuStar LP, formerly Valero PERKINS COIE LLP Jason T. Kuzma, WSH No. 31830 15 . . Gina S. Warren, WSBA No. 39178 - - . . - Attorneys for Plaintiff 1.6 - . Trans Mountain Pipeline (Puget Sound) LLC - formerly Terasen Pipeline Company - - . 17 . - . 18 CABLE I-IUSTON BENEDICT . - HAAGENSEN LLOYD LLP . 21 I . J. 35081 . . . - Attorney or Plaintiffs - 22- i .. Coast Products LLC Intalco STIPULATION ORDER FOR . . .. - CONSOLIDATED NO. 07-2-00321 -2, ET AL. LANEPOWEILPC . 3 2 206.237000 FAX: 2062233107 I PRR-2011-00450 . 1 nl ROBERT M. Mc A - . Attomey - aumAttomeys for Defendant . 5 . Washington State Utilities Transportation - - . - - CommissionSTOKES LAWRENCEPS . . . SlielleyM. Hall, WSBA No. 2S58EUR 10 Attorneys for Inteivenors The Bellingham Herald Allied Daily 11 - I Newspapers _12 . . I 1; -- onnicn . 14 This matter having corne before the Court on stipulation of the parties hereto, and the 15 'C0urt being ihlly advised, NOW, THEREFOREHEREBY ORDERED that the above-captioned consolidated actions are 1 I . 17 DISMISSED WITH PREJUDICE, each side to bear its own costsIS- ORDERED that the dismissal of the consolidated actions shall not . 19 prohibit any Plaintiff either Hom intervening in any litigation described in paragraph 13 of the - .20 Stipulated Settlement, attached hereto as Exhibit A, or commencing any litigation described 21 - in paragraph 14 of the'Stipulated SettlementHONORABLE RICHARD D. - . 25 - I SUPERIOR COURT JUDGE . 'STIPULATION ORDER FOR DISMISSAL- 4_ - CONSOLIDATED NO. 07-2-00321??2, LA1~m?P0wmL1Qrc . 1420 FIFTHAVENUB, SUITE 4100 . .. 98101-2338 2%.223.7107 . SF-00261 I - PRR-2011-00450 - amen'?} 'oo ?o:o 2* . - - AttorneysforDefendant .- - . 5 - Washington State Utilities Transportation . - Commission - . 7 I - I I STOKESLAWRENCEPS - - . . . iml 0.285 TheB Hem?a1d&A11iedDai1yhaving come befoxjethe Court on stipulation of the parties hereto, andthe an - .1SI . 16 IT IS HEREBY that thelabove-captioned consolidated actions - . 17 each side to hear its own costs. I i 1g_ IT FURTI-IER ORDERED that the dismissal ofthe consolidated actions shall not. lg prohibit any Plaintii either from in any litigation described in pa1jagraph13 of the_ - I I - 20 _Stip1ilated Sett1ementQ attached hereto as A, or conunencing any litigationidesoribed . im. inparagraph I - - HONORABLE RICHARD D. HICKS . `25 . SUPERIOR COURT JUDGE STIPULATION ORDER FOR DISMISSALCONSOLIDATED NO. 07-2--00321~2, ET AL. . . 1.A1~mP0wmLL.SEATTLE WASHINGTON 98l0l?2338 - .- - . Q06323.7000 I . PRR-2011-00450 I 1zoBa1irM.M?1isNNA . . - Attorney General - . Robert D. Cedgbaum, SBA No. l17?70 . Attorneys for Defendant - 5 - . Washington State Utilities Transportation - Commission 6 . . - `7 STOKES LAWRENCE PS - . . 9 By Shelley M. WSBA No. 28586 . - 10 Attorn for Intervenors . . The Herald Allied Daily 11 . . Newspapers . ORDER 14 This matter having come before the Court on stipulation of hereto, and the . -- 15 Court being fully advised, NOWHEREBY ORDERED that the _above--captioned consolidated actions are - - 17 DISMISSED WITH PREJUDICE, each side to bear its own costsFURTHER ORDERED that the dismissal of the consolidated actions shall not 19 prohibit any either &om intervening in any litigation described in paragraph 13 of the I 20 Siipulated Settlement, attached hereto as Exhibit A, or commencing ar; litigation described 21 in paragraph 14 ofthe Stipulated SettlementDATED HON0 Ha i" HICKS 25 SUPERI STIPULATION ORDER FOR DISMISSAL- 4 - CONSOLIDATED NO. 07-2-00321 -2, ET AL. - - - 1420 FIFTHAVBNUE, SUITE 4100 - WASHINGTON 98101-2338 . 206.223.7000 FAX: 206.223.7107 I SF-00263 . . PRR-201 1-00450 . - - I . . i 1 Presented by: . 2 LANE POWELL PC - 4 . Michael A. Nesteroti WSBA 0. 13.180 - 5 Attorneys for P1aintiEs_ - . . Chevron Pipe Line Corporation, Northwest . - . - . 6 Terminaling Company, ConocoPhillips Pipe I - . Line Company, Yellowstone Pipe Line . 7 Company Mc.Chord Pipeline Company . . 8 TO FORM . 9 NOTICE OF PRESENTATION WAIVED: . - . 10 sroannrvas - . . Vanessa _Soriano Power, WSBA No. 30777 - - - . Timothy L. M?Mah&n, WSBA NO. 16377 13 Attorneys for Plaintiffs . - 14 Northwest Gas Association KB Pipeline . TOLLEFSON - - . - 18 Arthur W. Hamgan, WSEA No. 01751 - . . - Christopher T. Wion, WSBA No. 33207 .. - . - 19 Attorneys for. Plaintiffs - . 20 -Olympie-Pipe Line Company . - - 21 CASCADIA LAW-GROUP - . . I 23 . . I . Stephen .7. Tan, SBA N0. 22756 . 24 Tanya Barrett, WSBA No. 17491 - . Attorneys for Plaintiffs - 25 NuStar LP, formerly Valero._LP I . - I I STIPULATION ORDER FORDISMISSAL- 5 I I - CONSOLIDATED NO. 07-2-0032l_--2, ET AL. - LANE POWELL rc . . 14211 FIFTH AVENUE, sum; 4100 . . SEATTLE. WASHINGTON 98101-2338 . . I . 2%.223.7000 2.06.2.'23.7107_ . - I 1 Presented by: I I II I 2 LANE POWELL Michael A. Nesterofi WSBA No. 13180 5 Attomeys for Plaintiffs . Chevron Pipe Line Corporation, Northwest- . - I 6 Terminaling Company, ConocoPhillips Pipe . Line Company, Yellowstone Pipe Line . . . . Company McChorrd Pipeline Company - 8 APPROVED AS TO FORM - I . I - - 9 NOTICE OF PRESENTATION WAIVED: . - 10 STOEL RIVES LLP . ]eEy Courser, WSBA No. 15466 . . . I2 Vanessa Soriano Power, WSBA No. 30777 . Timothy L. McMahan, WSBA No. 16377 - I3 Attomeys for Plaintiis - I . 14 Northwest Gas Association KB Pipeline - . - I 15 DANIESLSON HARRIGAN LEYH I . 16 TOLLEFSON LLP . - I . 18 ur W. `gan, WSBA No. 01751 - Christopher T. Wion, WSBA No. 33207 19 Attorneys for - I- -20 - Olympic Pipe LIHB I - 21 CASCADIA LAW GROUP I Step@ J. Tan, WSBA No. 22756 . 24 Tanya Barrett, WSBA No. 17491 - Attomeys for Plaintiffs 25 NuSta1? LP, formerly Valero STIPULATION ORDER FOR DISMISSAL- 5 I I - CONSOLIDATED NO. 07-2-00321 -2, ET AL. - LANE - 1420 FIFTH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98101-2338 . . 013000.062AI18316S3.1 2?6.223.7000 FAX: 206.223.7107 . . I SF-00265 I . PRR-2011-00450 LANEPOWELLIPC . . . Miehae1A.Nesteroft) 13180 - . 5 AttorneysforP1aincti:Et`sI - - . A Chevron Pipe Line Corporation, Northwest I. .. I 6 Terminaling Company, ConocoPhillips Pipe - - - . - Line Company, ellowstone Pipe Line - - . - 7 Company&MeChordPipe1ine Company . - . . A1>p1zovnn'As TO rom &'coN?mNrNOTICE. OF PRESENTATION 1 . - STOELRIVESLLP . - . - 12- Vanessa SorianoPower,WSBANo. 30777 . . . I - Timothy L.MeMahan, WSBA No. 16371 . - . .13 Attorneys for Plaintiffs - - - . . 14 Northwest Gas Association KB Pipeline I . 1s' DANIESLSONIHARRIGANLEYHGZ - . . -- 16 TOLLEFSONLLP - - . . 1 . I 18 .ArthurW.Hamgan,WSBANo. 01751 . - . . Christopher T. Wien, WSBA No. 332077 - . . 19 . AttomeysforP1ai11'dEs . I . 20* O1ympioPipe Line Company . - - CASCADIALAWGROUP .-- an, o.--756 I I . 24 17491 . . . - Attomeys for Plaintiffs 25 NuStar LP, formerly Valero_LP . . STIPULATION I - . I CONSOLIDATED NO2os.zzs.11o1 - . .. i I - I saeozPRR-2011-00450 - - I -- PERKINS COIE LLP . - Iaso uzma,W BAN0. 31830 .4 Gina arren, WSBA N0. 39178 Attorneys Plaintiffs . - . 5 Trans Mountain Pipeline (Puget Sormd) LLC, . - - - Formerly Terasen Pipeline Company 6 - . - 7 CABLE HUSTON BENEDICT - HAAGBNSEN LLP - . Will' 1am J. WSBA No. 35081 Attorneys for Plainti&`s_ - . ll BP West Coast Produots'LLC Intalco . Aluminum Company . . - - I 13 ROBERT CE?H?bau1n, WSBA No. 11770 . Attomeys for Defendant . . - . . . 17 Washington Utilities Transportation Commission_ - - . 18 I I - . . STOKES LAWRENCE P.Shelley M. Hall, WSBA N0. 28586 . . Attorneys for Intervenors 22 The Bellingham Herald Allied Daily Newspapers . . STIPULATION ORDER FOR DISM1SSAL-- 6 I . CONSOLIDATED NO. 07-2-00321421420 FIFTHAVENUB, WASHINGTON I. 013000.0624Il83l653.l 2062233000 FAX: 206t22S.710'7 SF-00267 I I I - . - . YPERKINSCOIE LLP - 3 By . - Jason T. Kuzma, WSBA No. 3l830 - 4 Gina S. Warren, WSBA No. 39178 . . . Attorneys for Plaintiffs . . . . . . 5' Trans Mountain-Pgaeline (Puget Sound) LLC, . - . I Formerly. Terasen ipeline Company 7. CABLE HUSTON BENEDICT . . - HAAGENSEN LLOYD LLP 35081 Attomews ?'P1?i?tiffS . . - . . 11 BPWest . - Aluminum Company . ROBERT M. Attorney General *WSBAN o. l1770 . . - .. Attomeys for Defendant - - 17 Washington Utilities Transportation Commission . - STOKES LAWRENCE P.SKAe1ley WSBA No. 28586 . - - tervenors - - 22 Th Herald &_Al1ied Daily Newspapers . - . 26 - I - I STIPULATION si owns Fon 6 I - . CONSOLIDATED NO. `07-2-00321-2, ET AL. . LANEPOWELLPC - . . . -- SEATTLE, 98101-2338 20623.1000 FAX: 2%.223.7107 . i - SF-00268 - nr . I - - 1 PERKINS COIE LLP . Jason Kuzma, WSBA No. 31830 - 4 Gina S.-Warren, WSBA No. 39_178 Attomgs for . . . . 5 Trans ountain Pipeline (Puget Sound) LLC, . - . Formerly Terasen Pipeline Company - - - 7 CABLE HUSTON BENEDICT - . . HAAGENSEN LLOYD LLP . - . William j. Lehman, WSBA No. 35081 - Attorneys for Plaintiffs . - . - . 11 BP West Coast Products LLC Intalco - -. - - Aluminum company . - ROBERTM.M A - - . Atwmw . . baum, SBA No. 11770 . - . . Attorneys for Defendant . . - 17 Washington Utilities Transportation Commission . - - i 18 I . - STOKES LAWRENCE P.Slielley M. EH, WSBA No. 2?5 E6 . - . Attom for Interyenors . - . 22 The B%ngham Herald Allied Daily Newspapers - STIPULATION ORDER FOR DISMISSAL- 6. . CONSOLIDATED NO. 07-2-00321?2, ET AL. LANE POWELLPC . 1420 FIFTHAVENUB, SUITE 4100 . - 98101-2338 . 013000.0624ll 831653.1 206.222%.7000 FAX: 2%.223.7107 SF-00269 . I - PRR-2011-00450 I I 1-- PERKINS C.OIE.LLP - . Jason T. Kuzma, WSBA No. 31830 . - 4 - . Attorneys for Plaintiffs - - - - 5 Trans Mountain Pipeline (Puget Sound) LLC, . - - Formerly Terasen Pipeline Company - 5 - 2 . .7 CABLE HUSTON BENEDICT . HAAGENSEN LLOYD LLP - . . . . William I. Lehman, WSBANO. 35081 . . . - Attorneys for Plaintiffs . - .. ll" BP West Coast &Inta1eo - . . - Aluminum Company - . . . 13 ROBERTM. . I- I . - Attorney GeneralRobert D. Ceda1jbaum,WSBA No. 11770 . .. . - . .Attorneys for Defendant - - 17 Washington Utilities 8; Transportation Commission STOKES P.el1eyM. HallAttorneys for Intervenors . . . .. I - . . -- zz The Bellingham Herald Allied Daily Newspapers - . I sT11>uiAr1oN 6 . - CONSOLIDATED NO. ET LANEPOWELLN98l01?2338_ I. IUI . I PRR-2011-00450 - . . - STATE OF WASHINGTON . 7 TI-IURSTON COUNTY SUPERIOR COURT 8 IJIORTHWEST GAS ASSOCIATION, a CASE NO. 07-2-00321 -STIPULATION WASHINGTON UTILITIES AND . I2 TRANSPORTATION COMMISSION, a . . 13 public agencyThis Sett1 ent_Stipulationis enteredthis20th day ofApril, 2010,by andbetween: I I6 Northwest Gas Association, Olympic Pipeline Compmy, Pipe Line Company, Northwest Terminaling Company, BP West Coast Produots LLC, lntalco Aluminum . - 19 Corporation, McChord Pipeline Co., Yellowstone Pipe Line Company, Conoco Philips Pipe 20 Line Company, Mountain Pipeline (Puget Sound) LLC, formerly 'I'erasen_Pipeline - . . 31 company, NuStar L.P., formerly Valero L.P., Portland General Electric Corporation, B-R 22 Pipeline Company, and KB Pipeline Company (referred to hereinaher jointly 23 individually as'PlaintiH'); the Washington Utilities and Transportation Commission 24 (Defendant); and the Herald and Allied Daily Newspapers (referred to I 25 . . 26 jointly I I I ATDORNBY . -1 . . . A EXHIBIT A A SF-00271. I I PRR-201 1-00450 - RCW and (2), Defendant collects maps liom and coneolidates the maps into astatewide geographic information system. The I - 5 geographiclnformation system that of Environmental Systems 6 Research centerline shapefiles, which are digital representations of pipeline "7 locations, with pipeline pressure regulators, compressor stations, metering facilities, taps, . I 8 -9 pipeline diameter, andother pipeline speci'dcations,'and 10 _whether thencommodity transported isnatural gaslor a hazardous liquidFebruary 6, 2007, the Defendant received a public records request under. 13 RCW 42.56 for the statewide ESRI centerline irom Jean Buckner of Bellevue, . WaahingtonThenqueststafed: I - - `rmeq me .. 15 - Safety thepteedcm of information act. I acm mquesting 16 database that infomation. Not just the maps, but all the - ??d?r1w?sPip?li??/F . tvdm; - 1'7` Also in 2007, the Seattle Post-Intelligencer, Seattle Times, Tri-City Herald, Tacoma News - - 1'9 Tribune, and Spokesman Review all made similar requests nmder RCW 42[56 for the statewide 20 ESRI shapeiilesFebruary 7, 2007, the Bellingham Herald submitted to the Defendant a 22 public records requem under RCW 42.56 for the ESRI centerline shapetiles. its request was - n. .24 biiufmmatio - 25 . in whawom well as underground location information maps of pipelines Hom hazardous - - 26 . liquid pipeline companies and gas pipeline companies with interstate . I - orwssamerou . - 2 - . . roam wm cms., wa esmom . . . . eso; . sr=-00212 . PRR-2011-00450 - . I pi lines commercial gas pipelines or gas transmissionpipelines in -- 2 ?WlhirtcornCountyfrom Ms. Buclmer and the Bellingham Herald. In response to the Defendantis notice, . 5 complaints in Thurston County Superior Court were Bled by each Plaintiff Each Plaintiff also - 6 sought a temporary order and preliminary injunction that would prevent the . I 7 Defendant from disclosing the ESRI centerline shapetiles to third parties that he not first 8 responders, local governments, or pipeline locator servicessuperiorcourtentered. on March 16, 2007 for `Plaintiffs' motions forpreliminary injunctionsMarch 12, 2007, the Bellingham Herald and Allied?Daily Newspapers tiled 14 motions to intervene, which superior court on March 16, 2007. The superior- court I IS also ruled that no ii?om disclosure under RCW 42.56 applied to the ESRI centerline - 16 . . shapetiles. Thus, the superior court deniedthe motions for a preliminary injunction and 18 . 7. On`March 19, 2007, Plaintiffs filed anotice of appeal and an Emergency - 20 - Motion for Stay, which Division II?of the Court of Appeals granted. I 21 - 8. On Octoher 2, 2007, the Court of Appeals issued its decision reversing the . 22 superior court and remanding the case for entry of a preliminary injunction and trial on the - 23 merits of a permanent injunction. The Washington Supreme Court denied review on July 8, 24 . . . 2008. Northwest Gauiss 'rn, et ul. v. 'Wa.rh. Util:. Tramp. Comm 141 -Wn. App. 98, 168 - 26' P.3d 443 (2007), review den 163 W.2d 1049 (2008). . . . - - STIPULATION . roam 4012: ozmptaws ??s04-om - (360) 6644183 . sr=-002vs -- PRR-2011-00450 . - - I 9. enteredapreliminary injunction against - - 2 disclosure by Defendant of Plaimiffsl ESRI centerline shapeiile in response to the public - I I I 4 recordsrequest nmder RSW 42.56 by Jean Buckner, Bellingham Herald, Allied Daily - 5 - I 6 _'locator.I . I 7 I . II. TERMS OF SETTLEMENT STIPULATION . 8 10. The Herald. to withdraw its February 7, 2007 public records 9 request to for County ERSI centerline shapeliles. Daily - I . 10 Newspapers members Seattle Times, Tacoma News Tribune, Spokesman Review and Tri-City Herald agree to withdraw their 2007 public records requests to Defendant for statewide ERSIcente:r1ine_shapetiles, asdoes representative ofthe Seattle Post?Intel1igenceasimilar in 2007. Bellingham Herald and Allied Daily Newspapers tirrther agree I I .15 1?ecordsIrequestunderRCW 42.56 forthe I 16 ERSI_centerline shapciiles State. I- - *7 I 11. Each P1aintlEagreesthatit-will amiss I I I - -18 these consolidated causes of action. I . . 20 12. Defendant has concluded that Plaintihsf centerline shapetiles are exempt I 21 from public disclosure under RCW 42.56.4200) and Northwest Gas Ass 'rz, at dl. v. Wash. - I 22 Utlls. Transp. Comm 141' Wn; App, I-98, 168 _P.3d 443 (2007), review den 163 W.2d U- 23 1049 (2008). Defendant, therefore, agrees it .will not disclose the BRSI centerline - 24- . I I I. Q5 thatdatapnderRCW 42.56, requestis atirst responder, locals?1?m11.a?r1oN ssa-ma . I . I. sr=-oozv4 - . PRR-2011-00450 . I government or locator. With respect to public request for the ERSI'center1ine - 2 .-shapetiles from a responder, locallgovernment orlocator, the Commission will advise the I. - 3. requestor that the Commission the ERSI centerline shapeiiles are sensitive security - U. information exempt from disclosure under and shall provide each iirst 6 responder, local government or locator who the data from the Commission the notice - 7 ofthe . . 8 9 -13-. In any tirture litigation involving a public records to Defendant under . 10 RCW 42.56 for centerline shapeiiles of any Plaintiff, Defendant will agree to entry of I u' apreliminary injunction against disclosure - responder, _local government or locator. Iflntervencrs, either individually or collectively, I - -. 14 interveneinany 15 14. 16 assume the continued applicability Gas Ass et aL1v.I Wash. Utils. I17 Coram '1'41 Wn. App. 98, 168 P;3d 448 den'd, 163 W.2d 1049 _(2008). In the . 18 event that the provisions of RCW 42.56.420(l) underlying the Court of Appeals' decision - change material way favorsldisclosure, the agreements in paragraphs 10 (last 2 - . 21 sentence only), 12 and 13 above shall not apply. Instead, in the event that Defendant receives a 22 public records under RCW 42.56 for the ERSI centerline shapeiles of any l'l I I Defendant agrees that it will give Plaintiffwhose ERSI centerline shapeflles are requested 24 ten-days notice of such request RCW 42.56.540-before disclosing the ERSI centerline . 25 I shapeiles. In any complaint tiled to disclosure of ERSI centerline I swoauav csusmtoruasrmorou - . I - I . 2 avoid fmther litlgationlnvolving the public disclosure of Plalnti&' ERSI centerline - . 8 shapetiles. No to this Settlement Stipulation waives any argument regarding the 9- applicability of any provision of RCW 42.56 to Plaintiffs' ERSI centerline shapeiiles, except to - - 10_ the extent-necessary to eifectuate the of paragraph 13 above. Nor does any party to this i an 11 - . . Settlement Stipulation waive any argument regarding whether the public diselosnue of 12 - . . 13 PlaintiEs' ERSI centerline shapeliles imder RCW-42.56 is prohibited-or preempted by federal 1416.- .16 dismissal ofthe Lawsuits by and shall--be fully enforceable the 17 and their successors and assigns. n- . - 18 LANE POWELL chael A. Nesteroi, WSBA . 13180 . - - . - 22 Chevron Pige Line Northwest Tenninaling . . Company, onoco gs Pipe Line Company, 23 Yellowstone Pipe Line ornpany 8c - -24 McChord Pipeline Company . I. . ll I I - STIPULATION -6 ,w - rosemizs onympu. . - I sr=-oozva . . . . . 1 sfrom. RIVBS . I - py C9 D. Ic ourserVanessa Soriano Power, WSBA No. 30777 . . Timothy L. McMahau, WSBA N0. 16377 Attomeys for Plaintiffs . - 6 Northwest Gas Association KB Pipeline . . 7 DANIELSON, HARRIGAN, LBYH . - - `Harngan, WSBA No. 01751; . . Cluistogxer T. Wion, WSBA No. 33207 . ll Attuorneys Plaintiffs 12 Olympic Pipe Line Company - 13 CASCADIA LAW GROUP . 14 . - 15 By' Stephen J. Tan, WSBA N0. 22756 . - - 16 Tanya Barnett, WSBA No. 17491 - - . Attomeys for Plaintifs - 17 NuStar L.P., formerly Valero L.P. - - 19 PERKINS COIB LLP - 21 By . - - Jason T. Kuzma, WSBA N0. 3l830 22 Gina S. Warren, WSBA N0. 39178 . . Attorneys for Plaintiffs . 23 Trans Mountain Pipeline (Puget Sound) LLC, 24 formerly Terasen Pipeline Company . amnxav umm. on wasxmomu smrmarrou - 7 . "m . . P0 Box 40128 Olympig WA 98504-0128 (360)664??l183 . sr=-coin - . PRR-2011-00450 - 5.1% EGMVanessa oriano Power, 30777 - - . MoMaban, WSBA No. 16377 . . 5 Attorneys Plaintifs - . . . 6 Northwest Gas Association KB Pipeline . 7 - - 2 . 8 TOLLEFSON LLP - 1011, - 11 Attorneys. .- - - . 12* Olympic Pipe Line Company - .13 CASCADIALAW GROUPTau, WSBK 0. ENG '16 Tanya Barnett, 17491 . - . . Attorneys . . 17 NuStar L.P., formerly Valero L.PERKINS COIB LLP . - - Jason T. Kuzma, . - . 22 Gina'S. Warren, 39178 - . . - . - Attornoysfor Plaintiffs . . - - 23 Trans Mountain Pipeline (Puget Sound) LLCformerly TerasenP1pe1ine Company . I 25 - . 1 . _26B?x40128 O1ympla,WA I I I - I SF-00278 - I I I . . . - . i STOELRIVESLLP - - . . I5. Eurspr, WEEK No. @55 - 4 Vanessa 30777 - - 16377 - 5 Athomeys P1aimiTOLLEFSON LLP I BY - __10 W. 61*7sI . Chris?o?cr T. ion, WSBA No. 33207 - . 11 Attomoys Plaimiis 12 Olympic Pipe Lino Company - 13 CASCADIALAW GROUP - *TauyaBamott, BAN0. 17491 . . I. - - - . 17 NuStar L.P., formorly Valoro L19- PERKINS Jason Kuzma, WSE-N0. 31030 22 GinaS. Warren, 39178 . Attorneys forP1aintif1?`s - . 23 LLC, . 24 formerly Tcrascn polino Company Ammv . - SEITLEIVIENTSTUUIATION -7 . . - sr=-oozvs . - PRR-2011-00450 1 STOBLRIVBSLU{-Eurser, l5466 . - 4 . Vanessa Soriano Power, 30777 - . 'I'imothy_L. McMahan, 16377 . 5 .Att