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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN DOES 1, 2, 4, 5,
DIVISION ONE
Appellants/Cross Respondents,
No. 83700-1-I
JANE DOE 1 and JOHN DOE 3,
PUBLISHED OPINION
Plaintiffs,
v.
SEATTLE POLICE DEPARTMENT and
the SEATTLE POLICE DEPARTMENT
OFFICE OF POLICE
ACCOUNTABILITY,
Respondents,
and
SAM SUEOKA,
Respondent/Cross Appellant,
JEROME DRESCHER, ANNE BLOCK,
and CHRISTI LANDES,
Respondents.
DWYER, J. — “There are rights of constitutional stature whose exercise a
State may not condition by the exaction of a price.” Garrity v. State of New
Jersey, 385 U.S. 493, 500, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). Among these
are the rights guaranteed by the First Amendment to our federal constitution.
Garrity, 385 U.S. at 500. Police officers “are not relegated to a watered-down
version of [such] rights.” Garrity, 385 U.S. at 500.
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No. 83700-1-I/2
In this Public Records Act litigation, the trial court failed to heed this
pronouncement. Accordingly, we reverse the trial court’s order requiring
disclosure of certain unredacted records. We affirm the ancillary orders of the
trial court and remand the matter for further proceedings.
I
Soon after the United States Supreme Court pronounced that police
officers are not condemned to a “watered-down version” of core constitutional
rights, the voters of our state passed by popular initiative the predecessor to
Washington’s Public Records Act1 (PRA). See Progressive Animal Welfare
Soc’y v. Univ. of Wash., 125 Wn.2d 243, 250-52, 884 P.2d 592 (1994) (PAWS)
(noting approval of the public disclosure act in November 1972). Thus, since the
day of the enactment of our state’s public records law, police officers in
Washington have been entitled to the same federal constitutional protections as
are all other Washingtonians. It is by adherence to this principle that we decide
this case.
We are presented today with the question of whether the Seattle Police
Department (SPD) and the City of Seattle (the City) may disclose in investigatory
records the identities of current or former Seattle police officers who were
investigated regarding potential unlawful or unprofessional conduct during the
events of January 6, 2021, in Washington, D.C. John Does 1, 2, 4, and 5 (the
Does) sought judicial declaratory and injunctive relief after being informed that
SPD, their employer, intended to publicly disclose the unredacted investigatory
1 Ch. 42.56 RCW.
2
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No. 83700-1-I/3
records in response to several PRA requests. Investigators have determined
that allegations against the Does of unlawful or unprofessional conduct were “not
sustained.” The Does contend that their identities should thus not be disclosed in
the requested records, which include transcripts of interviews in which they were
compelled to disclose and discuss their political beliefs and affiliations.
The trial court denied the Does’ motion for a preliminary injunction,
concluding that the exceptions to permitted disclosure set forth in the PRA are
inapplicable. The Does appealed from the trial court’s order. In addition, Sam
Sueoka, a member of the public who filed a records request to obtain copies of
the investigatory records, cross appealed, asserting that the trial court erred by
permitting the Does to proceed pseudonymously in this litigation.
The United States Supreme Court has recognized a First Amendment
right to privacy that protects against state action compelling disclosure of political
beliefs and associations. Thus, only if the state actor (here, the City)
demonstrates a compelling interest in disclosure, and that interest is sufficiently
related to the disclosure, can the state actor lawfully disclose the Does’ identities
in the investigatory records. Because there is here established no compelling
state interest in disclosing the Does’ identities, the trial court erred by denying the
Does’ motion for a preliminary injunction.
The trial court properly concluded, however, that the Does should be
permitted to use pseudonyms in litigating this action. Because the Does assert a
First Amendment privacy right, it is federal constitutional law—not state law—that
controls their request to litigate pseudonymously. Pursuant to federal First
3
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No. 83700-1-I/4
Amendment open courts jurisprudence, plaintiffs may litigate using pseudonyms
in circumstances wherein the injury sought to be prevented by prevailing in the
lawsuit would necessarily be incurred as a result of the compelled disclosure of
the plaintiffs’ identities, required as a condition of commencing the very lawsuit in
which vindication of the constitutional right is sought. Accordingly, the Does may
remain anonymous in this action.
II
The Does are current or former SPD officers2 who attended former
President Donald Trump’s “Stop the Steal” political rally on January 6, 2021 in
Washington, D.C. Upon returning to Washington State, the Does received
complaints from SPD’s Office of Police Accountability (the OPA) alleging that
they might have violated the law or SPD policies during their attendance at the
rally.
The Does thereafter submitted to OPA interviews in which they were
“ordered to answer all questions asked, truthfully and completely,” and informed
that “failure to do so may result in discipline up to and including termination.” In
addition to inquiring regarding the Does’ whereabouts and activities on January
6, the OPA also inquired regarding their political beliefs and associations,
including whether they attended the rally “to articulate [their] political views,”
whether they were “affiliated with any political groups,” and “[their] impressions
of, and reactions to, the content of the Rally.” Because the Does were under
2 John Doe 1 resigned from SPD in December 2021 “as a direct result of the pressure”
from the investigation and “public backlash arising” therefrom, as well as his concern “over
retribution” from the incident.
4
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No. 83700-1-I/5
standing orders to do so, they answered these questions “truthfully and as
completely as possible.”
Sueoka and other members of the public submitted records requests
pursuant to the PRA, chapter 42.56 RCW, seeking disclosure of the investigatory
records pertaining to police officers who participated in the events of January 6,
2021, in our nation’s capital. In response to the records requests, SPD informed
the Does that it intended to disclose both records regarding its ongoing
investigation and the Does’ personnel files.
On February 23, 2021, the Does filed a complaint for declaratory relief and
preliminary and permanent injunction in the trial court.3 They concurrently filed a
motion for permission to proceed pseudonymously and a motion for a temporary
restraining order (TRO) and order to show cause why the preliminary injunction
should not issue.
On February 24, 2021, the trial court granted the Does’ motion for a TRO,
enjoining production of the requested records until a show cause hearing was
held. On March 9, 2021, the trial court granted the Does’ motion to proceed
pseudonymously, ruling that the order would “remain in effect at least until the
merits of Plaintiffs’ PRA claims are resolved.”
Following the show cause hearing, held on March 10, 2021, the trial court
denied the Does’ motion for a preliminary injunction. The Does sought review of
the trial court’s ruling in this court, and review was granted. Sueoka thereafter
3 The complaint was filed by Jane and John Does, 1 through 6. Jane Doe 1 and John
Doe 3 are not parties in this appeal. While litigation was ongoing in the trial court, the OPA
determined that Jane Doe 1 and John Doe 3 had violated both the law and SPD policies on
January 6, 2021, and their employment by SPD was terminated.
5
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No. 83700-1-I/6
moved to transfer the cause to our Supreme Court. Then, on June 28, 2021, the
OPA concluded its investigation. The OPA determined that allegations that the
presently-litigating Does had violated the law or SPD policies or had engaged in
unprofessional conduct were “not sustained.”
On August 4, 2021, our Supreme Court granted Sueoka’s motion to
transfer the cause to that court. However, following oral argument on November
9, 2021, the court determined that, “in light of changed circumstances,” review of
the preliminary injunction was moot. The court dismissed review of the matter
and remanded the cause to the trial court for further proceedings.
The trial court proceedings at issue herein then commenced. On January
5, 2022, Sueoka filed a “motion to change the case title and bar the use of
pseudonyms.” On January 12, 2022, the Does filed an additional motion for a
preliminary injunction, again requesting that the trial court redact their identities in
any disclosed records.4
Following a January 28, 2022 hearing, the trial court again denied the
Does’ motion for a preliminary injunction, ruling that the Does had not “met their
burden of proof that they have a privacy right that falls within an exemption under
the [PRA].” The court additionally concluded that the record contains “insufficient
evidence” that disclosure will cause the Does to “experience a level of
harassment that will result in a chilling effect on their First Amendment rights.”
4 Jane Doe 1 and John Doe 3 were no longer parties at that point in the litigation.
Accordingly, the motion was filed by the “Represented Doe Plaintiffs,” who are the same
individuals as the Does in this appeal.
6
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No. 83700-1-I/7
The trial court also denied Sueoka’s motion to preclude the Does from
proceeding in pseudonym.
The Does appeal from the trial court’s order denying their motion for a
preliminary injunction. Sueoka cross appeals, asserting that the trial court erred
by denying his “motion to change the case title and bar the use of pseudonyms.”
Sueoka also requests that we change the case title and bar the use of
pseudonyms in this appeal.
III
The Does assert that the trial court erred by determining that they were
unlikely to succeed on the merits of their claim that their identities are exempt
from disclosure in the requested records and, accordingly, denying their motion
for a preliminary injunction precluding such disclosure. We agree. The First
Amendment, made applicable to the states though the due process clause of the
Fourteenth Amendment, Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L.
Ed. 1138 (1925), confers a right to privacy in one’s political beliefs and
associations that may be impinged only on the basis of a subordinating state
interest that is compelling.
Our Supreme Court’s decisional authority, the profusion of legislatively
enacted exceptions to disclosure, and the policy underlying the PRA indicate that
there is no compelling state interest in disclosing to the public the identities of
public employees against whom unsustained allegations of wrongdoing have
been made. Therefore, we hold that the trial court erred by denying the Does’
7
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No. 83700-1-I/8
request for a preliminary injunction precluding disclosure of their names and
other identifying information in the requested records.
A
1
The party seeking an injunction pursuant to the PRA has the burden of
proof. Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 791, 418 P.3d 102 (2018).
When a party seeks a preliminary injunction or a TRO, “the trial court need not
resolve the merits of the issues.” Seattle Children’s Hosp. v. King County, 16
Wn. App. 2d 365, 373, 483 P.3d 785 (2020). “Instead, the trial court considers
only the likelihood that the moving party ultimately will prevail at a trial on the
merits.” SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servs., 193 Wn. App.
377, 392-93, 377 P.3d 214 (2016).
We stand in the same position as the trial court when, as here, “the record
consists of only affidavits, memoranda of law, and other documentary evidence,
and where the trial court has not seen or heard testimony requiring it to assess
the witnesses’ credibility or competency.” Bainbridge Island Police Guild v. City
of Puyallup, 172 Wn.2d 398, 407, 259 P.3d 190 (2011). “Whether requested
records are exempt from disclosure presents a legal question that is reviewed de
novo.” Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for Childhood Deafness &
Hearing Loss, 194 Wn.2d 484, 493, 450 P.3d 601 (2019).
2
“The PRA ensures the sovereignty of the people and the accountability of
the governmental agencies that serve them by providing full access to
8
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No. 83700-1-I/9
information concerning the conduct of government.” Predisik v. Spokane Sch.
Dist. No. 81, 182 Wn.2d 896, 903, 346 P.3d 737 (2015). Its basic purpose “is to
provide a mechanism by which the public can be assured that its public officials
are honest and impartial in the conduct of their public offices.” Cowles Publ’g Co.
v. State Patrol, 109 Wn.2d 712, 719, 748 P.2d 597 (1988). To that end, the act
requires state and local agencies to “make available for public inspection and
copying all public records,” unless the record falls within a specific exemption in
the PRA or an “other statute which exempts or prohibits disclosure of specific
information or records.” RCW 42.56.070(1).
We have interpreted the “other statute” provision to incorporate
exemptions set forth not only in other legislative enactments, but also those
deriving from the state or federal constitutions. Wash. Fed’n of State Emps.,
Council 28 v. State, 22 Wn. App. 2d 392, 511 P.3d 119 (2022), review granted,
200 Wn.2d 1012, 519 P.3d 585 (2022); see also White v. Clark County, 188 Wn.
App. 622, 354 P.3d 38 (2015). Although our Supreme Court has not directly held
that RCW 42.56.070(1)’s “other statute” provision incorporates constitutional
protections against disclosure, the court has acknowledged that such an
argument “has force.” Yakima County v. Yakima Herald-Republic, 170 Wn.2d
775, 808, 246 P.3d 768 (2011) (addressing the argument that provisions of the
United States Constitution qualify as “other statutes”).
Moreover, the high court has recognized that, even absent legislative
incorporation of constitutional guarantees in the PRA, Washington courts must
nevertheless protect such rights. Seattle Times Co. v. Serko, 170 Wn.2d 581,
9
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No. 83700-1-I/10
594-96, 243 P.3d 919 (2010). In the context of fair trial rights, the court
explained that while “[t]here is no specific exemption under the PRA that
mentions the protection of an individual’s constitutional fair trial rights, . . . courts
have an independent obligation to secure such rights.” Seattle Times Co., 170
Wn.2d at 595. Indeed, because “the constitution supersedes contrary statutory
laws, even those enacted by initiative,” “the PRA must give way to constitutional
mandates.” Freedom Found. v. Gregoire, 178 Wn.2d 686, 695, 310 P.3d 1252
(2013).
In addition to setting forth exemptions to the mandate for disclosure of
public records, the PRA includes an injunction provision stating that disclosure
may be enjoined only when “examination would clearly not be in the public
interest and would substantially and irreparably damage any person, or would
substantially and irreparably damage vital governmental functions.” RCW
42.56.540. Based on this statutory provision, our Supreme Court has held that
“finding an exemption applies under the PRA does not ipso facto support issuing
an injunction.” Lyft, 190 Wn.2d at 786. Rather, for the disclosure of records to
be precluded due to a statutory exemption, the court has held that the PRA’s
standard for injunctive relief must also be met. Morgan v. City of Federal Way,
166 Wn.2d 747, 756-57, 213 P.3d 596 (2009); see also Soter v. Cowles Publ’g
Co., 162 Wn.2d 716, 757, 174 P.3d 60 (2007) (plurality opinion) (“[T]o impose the
injunction contemplated by RCW 42.56.540, the trial court must find that a
specific exemption applies and that disclosure would not be in the public interest
10
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No. 83700-1-I/11
and would substantially and irreparably damage a person or a vital government
interest.”).
3
Our analysis of the issues presented relies on the holdings of our nation’s
highest court establishing that the First Amendment to the United States
Constitution confers a privacy right in an individual’s political beliefs and
associations. Accordingly, we must explore the decisional authority establishing
the contours of that right.
The United States Supreme Court has recognized “political freedom of the
individual” to be “a fundamental principle of a democratic society.” Sweezy v.
New Hampshire, 354 U.S. 234, 250, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957).
“Our form of government,” the Court explained, “is built on the premise that every
citizen shall have the right to engage in political expression and association,” a
right “enshrined in the First Amendment.” Sweezy, 354 U.S. at 250. Indeed, “[i]n
the political realm . . . thought and action are presumptively immune from
inquisition by political authority.” Sweezy, 354 U.S. at 266.5 Thus, the federal
constitution protects not only the right of individuals to engage in political
expression and association, but also to maintain their privacy in so doing.
Indeed, the Court has “repeatedly found that compelled disclosure, in
itself, can seriously infringe on privacy of association and belief guaranteed by
5 See also Gibson v. Florida Legis. Investigation Comm., 372 U.S. 539, 570, 83 S. Ct.
889, 9 L. Ed. 2d 929 (1963) (Douglas, J., concurring) (“‘The First Amendment in its respect for the
conscience of the individual honors the sanctity of thought and belief. To think as one chooses,
to believe what one wishes are important aspects of the constitutional right to be let alone.’”
(quoting Pub. Utils. Comm’n of Dist. of Columbia v. Pollak, 343 U.S. 451, 468, 72 S. Ct. 813, 96
L. Ed. 1068 (1952) (Douglas, J., dissenting))).
11
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No. 83700-1-I/12
the First Amendment.” Buckley v. Valeo, 424 U.S. 1, 64, 96 S. Ct. 612, 46 L. Ed.
2d 659 (1976) (citing Gibson v. Florida Legis. Investigation Comm., 372 U.S.
539, 83 S. Ct. 889, 9 L. Ed. 2d 929 (1963); Nat’l Ass’n for Advancement of
Colored People v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963);
Bates v. City of Little Rock, 361 U.S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960);
Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960); Nat’l
Ass’n for Advancement of Colored People v. Alabama, 357 U.S. 449, 78 S. Ct.
1163, 2 L. Ed. 2d 1488 (1958) (NAACP)); see also Doe v. Reed, 561 U.S. 186,
232, 130 S. Ct. 2811, 177 L. Ed. 2d 493 (2010) (Thomas, J., dissenting) (“This
Court has long recognized the ‘vital relationship between’ political association
‘and privacy in one’s associations,’ and held that ‘[t]he Constitution protects
against the compelled disclosure of political associations and beliefs.’” (alteration
in original) (citation omitted) (quoting NAACP, 357 U.S. at 462; Brown v. Socialist
Workers ’74 Campaign Comm. (Ohio), 459 U.S. 87, 91, 103 S. Ct. 416, 74 L. Ed.
2d 250 (1982))). Thus, the Court has recognized a “pervasive right of privacy
against government intrusion” that is “implicit in the First Amendment.” Gibson,
372 U.S. at 569-70 (Douglas, J., concurring). This “tradition of anonymity in the
advocacy of political causes . . . is perhaps best exemplified by the secret ballot,
the hard-won right to vote one’s conscience without fear of retaliation.” McIntyre
v. Ohio Elections Comm’n, 514 U.S. 334, 343, 115 S. Ct. 1511, 131 L. Ed. 2d
426 (1995); see also Sweezy, 354 U.S. at 266 (“It cannot require argument that
inquiry would be barred to ascertain whether a citizen had voted for one or the
other of the two major parties either in a state or national election.”).
12
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No. 83700-1-I/13
The Supreme Court’s jurisprudence regarding this constitutional right to
privacy evolved in response to legislative investigations seeking to compel the
disclosure of individuals’ political beliefs. In the 1950s, the Court considered the
constitutional limits of legislatures’ authority to inquire into belief and activity
deemed to be subversive to federal or state governments. Uphaus v. Wyman,
360 U.S. 72, 79 S. Ct. 1040, 3 L. Ed. 2d 1090 (1959); Watkins v. United States,
354 U.S. 178, 77 S. Ct. 1173, 1 L. Ed. 2d 1273 (1957); Sweezy, 354 U.S. 234;
Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952). This
“new kind of [legislative] inquiry unknown in prior periods of American history . . .
involved a broad-scale intrusion into the lives and affairs of private citizens,”
Watkins, 354 U.S. at 195, thus requiring the Court to ensure that such inquiry did
not “unjustifiably encroach upon an individual’s right to privacy.” Watkins, 354
U.S. at 198-99. In considering this “collision of the investigatory function with
constitutionally protected rights of speech and assembly,” Uphaus, 360 U.S. at
83 (Brennan, J., dissenting), the Court recognized the state interest in “self-
preservation, ‘the ultimate value of any society.’” Uphaus, 360 U.S. at 80
(quoting Dennis v. United States, 341 U.S. 494, 509, 71 S. Ct. 857, 95 L. Ed.
1137 (1951)). However, the Court rejected any notion that exposure itself was a
valid state interest:
We have no doubt that there is no congressional power to
expose for the sake of exposure. The public is, of course, entitled
to be informed concerning the workings of its government. That
cannot be inflated into a general power to expose where the
predominant result can only be an invasion of the private rights of
individuals.
13
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No. 83700-1-I/14
Watkins, 354 U.S. at 200 (footnote omitted); see also Uphaus, 360 U.S. at 82
(Brennan, J., dissenting) (recognizing the “investigatory objective” therein to be
“the impermissible one of exposure for exposure’s sake”).
The Watkins Court recognized the governmental intrusion resulting from
such legislative inquiry, as well as the “disastrous” consequences that may ensue
as a result of compelled disclosure of the individual’s political beliefs.
The mere summoning of a witness and compelling him to testify,
against his will, about his beliefs, expressions or associations is a
measure of governmental interference. And when those forced
revelations concern matters that are unorthodox, unpopular, or
even hateful to the general public, the reaction in the life of the
witness may be disastrous.
354 U.S. at 197; see also Uphaus, 360 U.S. at 84 (Brennan, J., dissenting) (“[I]n
an era of mass communications and mass opinion, and of international tensions
and domestic anxiety, exposure and group identification by the state of those
holding unpopular and dissident views are fraught with such serious
consequences for the individual as inevitably to inhibit seriously the expression of
views which the Constitution intended to make free.”).
However, it is not only those individuals compelled to disclose their beliefs
who may be impacted. To the contrary, the Court recognized an additional “more
subtle and immeasurable effect upon those who tend to adhere to the most
orthodox and uncontroversial views and associations in order to avoid a similar
fate at some future time.” Watkins, 354 U.S. at 197-98. Moreover, that the injury
was not inflicted solely by government actors did not nullify the constitutional
infirmity; rather, that the “impact [was] partly the result of non-governmental
14
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No. 83700-1-I/15
activity by private persons [could not] relieve the investigators of their
responsibility for initiating the reaction.” Watkins, 354 U.S. at 198.
The Supreme Court further defined this constitutional privacy interest in
response to legislative action seeking to compel the disclosure of organizational
membership. NAACP, 357 U.S. 449; Bates, 361 U.S. 516; Shelton, 364 U.S.
479; Gibson, 372 U.S. 539. In 1958, the Court considered whether Alabama
could, consistent with our federal constitution, compel the NAACP to disclose its
membership list to the Alabama Attorney General. NAACP, 357 U.S. at 451. “It
is beyond debate,” the Court held, “that freedom to engage in association for the
advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured
by the Due Process Clause of the Fourteenth Amendment, which embraces
freedom of speech.” NAACP, 357 U.S. at 460. Although the state itself had
“taken no direct action” in the challenged contempt judgment, the Court
recognized that “abridgement of [First Amendment] rights, even though
unintended, may inevitably follow from varied forms of governmental action.”
NAACP, 357 U.S. at 461. Indeed, “[t]he governmental action challenged may
appear to be totally unrelated to protected liberties.” NAACP, 357 U.S. at 461.
Nevertheless, the Court held, the State could require disclosure of the
membership lists only if there existed a “‘subordinating interest of the State [that
is] compelling.’” NAACP, 357 U.S. at 463 (quoting Sweezy, 354 U.S. at 265);
see also Bates, 361 U.S. at 524 (“Where there is a significant encroachment
upon personal liberty, the State may prevail only upon showing a subordinating
15
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No. 83700-1-I/16
interest which is compelling.”). The Court concluded that it discerned no such
state interest. NAACP, 357 U.S. at 464.
The Court again considered whether the First Amendment, incorporated
through the due process clause, precluded the compelled disclosure of NAACP
membership lists in Bates, 361 U.S. 516. There, the organization asserted the
rights of its “‘members and contributors to participate in the activities of the
NAACP, anonymously, a right which has been recognized as the basic right of
every American citizen since the founding of this country.’” Bates, 361 U.S. at
521. Again, the Court recognized that it was not simply a “heavy-handed frontal
attack” against which First Amendment freedoms are protected, but “also from
being stifled by more subtle governmental interference.” Bates, 361 U.S. at 523.
In concurrence, Justices Black and Douglas recognized that mere exposure by
the government can impinge these constitutional protections. Bates, 361 U.S. at
528 (Black & Douglas, JJ., concurring). “First Amendment rights,” the Justices
recognized, “are beyond abridgement either by legislation that directly restrains
their exercise or by suppression or impairment through harassment, humiliation,
or exposure by government.” Bates, 361 U.S. at 528 (Black & Douglas, JJ.,
concurring) (emphasis added). As in NAACP, the Bates Court discerned no
sufficient state interest to compel the disclosure of the membership lists. 361
U.S. at 525.
That same year, the Court addressed the constitutionality of an Arkansas
statute requiring public school teachers to disclose, as a condition of
employment, all organizations with which they had been associated in the
16
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No. 83700-1-I/17
previous five years. Shelton, 364 U.S. 479. Recognizing the State’s
undoubtedly legitimate interest in investigating the fitness and competency of its
teachers, the Court nevertheless observed that the statute’s “scope of inquiry”
was “completely unlimited.” Shelton, 364 U.S. at 485, 488. Significantly, the
statute would have required “a teacher to reveal the church to which he belongs,
or to which he has given financial support. It [would have required] him to
disclose his political party, and every political organization to which he may have
contributed over a five-year period.” Shelton, 364 U.S. at 488. This
“comprehensive interference with associational freedom,” the Court held, “goes
far beyond what might be justified in the exercise of the State’s legitimate inquiry
into the fitness and competency of its teachers.” Shelton, 364 U.S. at 490.
As in NAACP, the Supreme Court in Shelton again recognized that
exposure by the State could impinge constitutional privacy rights. Because the
Arkansas statute nowhere required confidentiality of the information involuntarily
disclosed to the government, the Court considered that the teachers’ religious,
political, and other associational ties could additionally be disclosed to the public.
Shelton, 364 U.S. at 486-87. The Court was clear that such an intrusion into the
teachers’ privacy would further impinge their constitutional rights. Such “[p]ublic
exposure, bringing with it the possibility of public pressures upon school boards
to discharge teachers who belong to unpopular or minority organizations, would
simply operate to widen and aggravate the impairment of constitutional liberty.”
Shelton, 364 U.S. at 486-87.
17
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No. 83700-1-I/18
Four Justices dissented in Shelton, disagreeing with the majority’s holding
that, under the circumstances presented, the extent of constitutional infringement
resulting from compelled disclosure was sufficient to override the countervailing
legitimate state interest.6 Nevertheless, even the dissenting opinions in Shelton
recognized both the existence of a constitutional privacy interest and the
potential for public exposure of associational ties to impinge upon those rights.
For instance, Justice Frankfurter, distinguishing NAACP and Bates due to the
absence of a legitimate state interest presented in those cases, recognized “that
an interest in privacy, in non-disclosure, may under appropriate circumstances
claim constitutional protection.” Shelton, 364 U.S. at 490 (Frankfurter, J.,
dissenting). Similarly, Justice Harlan suggested that public disclosure of the
teachers’ associational ties, beyond simply the compelled disclosure to their
school boards, might impinge their liberty rights: “I need hardly say that if it turns
out that this statute is abused, either by an unwarranted publicizing of the
required associational disclosures or otherwise, we would have a different kind of
case than those presently before us.” Shelton, 364 U.S. at 499 (Harlan, J.,
dissenting).
Three years later, the Court was “called upon once again to resolve a
conflict between individual rights of free speech and association and
governmental interest in conducting legislative investigations.” Gibson, 372 U.S.
6 See Shelton, 364 U.S. at 496 (Frankfurter, J., dissenting) (concluding that “the
disclosure of teachers’ associations to their school boards” is not “without more, such a restriction
upon their liberty . . . as to overbalance the State’s interest in asking the question”); Shelton, 364
U.S. at 497 (Harlan, J., dissenting) (concluding that the statute’s disclosure requirement “cannot
be said to transgress the constitutional limits of a State’s conceded authority to determine the
qualifications of those serving it as teachers”).
18
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No. 83700-1-I/19
at 543. There, a Florida legislative committee sought to subpoena NAACP
membership lists, presumably to investigate suspected communist involvement.
Gibson, 372 U.S. at 540-41. The Supreme Court again affirmed that such an
investigation, “which intrudes into the area of constitutionally protected rights of
speech, press, association and petition,” is lawful only when the State can
“convincingly show a substantial relation between the information sought and a
subject of overriding and compelling state interest.” Gibson, 372 U.S. at 546.
The Court held that “all legitimate organizations are the beneficiaries of these
protections,” but noted that the protections “are all the more essential . . . where
the challenged privacy is that of persons espousing beliefs already unpopular
with their neighbors.” Gibson, 372 U.S. at 556-57. In such circumstances, “the
deterrent and ‘chilling’ effect on the free exercise of constitutionally enshrined
rights of free speech, expression, and association is consequently the more
immediate and substantial.” Gibson, 372 U.S. at 557.
In the decades that have followed, the Supreme Court has continued to
hold that First Amendment rights may be impinged when the government
compels disclosure of political beliefs and associations. In 1982, the Court again
affirmed that “[t]he Constitution protects against the compelled disclosure of
political associations and beliefs.” Brown, 459 U.S. at 91. “Such disclosures,”
the Court recognized, “‘can seriously infringe on privacy of association and belief
guaranteed by the First Amendment.’” Brown, 459 U.S. at 91 (quoting Buckley,
424 U.S. at 64). Again, the Court held that only by demonstrating a compelling
interest can the State lawfully impinge such rights:
19
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No. 83700-1-I/20
The right to privacy in one’s political associations and beliefs will
yield only to a “‘subordinating interest of the State [that is]
compelling,’” NAACP[, 357 U.S. at 463] (quoting Sweezy[, 354 U.S.
at 265]) (opinion concurring in result), and then only if there is a
“substantial relation between the information sought and [an]
overriding and compelling state interest.” Gibson[, 372 U.S. at
546].
Brown, 459 U.S. at 91-92 (some alterations in original).
Over a decade later, in declaring unconstitutional an Ohio statute
prohibiting the distribution of anonymous campaign literature, the Supreme Court
once again “embraced [the] respected tradition of anonymity in the advocacy of
political causes.” McIntyre, 514 U.S. at 343 (citing Talley v. California, 362 U.S.
60, 80 S. Ct. 536, 4 L. Ed. 2d 559 (1960)); see also Watchtower Bible & Tract
Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 122 S. Ct. 2080, 153 L.
Ed. 2d 205 (2002) (recognizing a right to anonymity in declaring unconstitutional
an ordinance requiring individuals to obtain and display a permit to engage in
door-to-door advocacy). In McIntyre, the Court recognized the constitutional
significance of “core political speech,” describing the speech involved therein—
the “handing out [of] leaflets in the advocacy of a politically controversial
viewpoint”—as “the essence of First Amendment expression.” 514 U.S. at 347.
Acknowledging that the reasons for anonymity could be many,7,8 the Court held
that the freedom to remain anonymous, whether in “the literary realm” or “in the
field of political rhetoric,” “is an aspect of the freedom of speech protected by the
7 “The decision in favor of anonymity,” the Court noted, “may be motivated by fear of
economic or official retaliation, by concern about social ostracism, or merely by a desire to
preserve as much of one’s privacy as possible.” McIntyre, 514 U.S. at 341-42.
8 “Even the Federalist Papers, written in favor of the adoption of our Constitution, were
published under fictitious names. It is plain that anonymity has sometimes been assumed for the
most constructive purposes.” Talley, 362 U.S. at 65.
20
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No. 83700-1-I/21
First Amendment.” McIntyre, 514 U.S. at 342-43. For Justice Stevens, writing in
McIntyre, the value of anonymity in political speech could not be overstated:
Under our Constitution, anonymous pamphleteering is not a
pernicious, fraudulent practice, but an honorable tradition of
advocacy and of dissent. Anonymity is a shield from the tyranny of
the majority. See generally J. Mill, On Liberty and Considerations
on Representative Government 1, 3-4 (R. McCallum ed. 1947). It
thus exemplifies the purpose behind the Bill of Rights, and of the
First Amendment in particular: to protect unpopular individuals from
retaliation—and their ideas from suppression—at the hand of an
intolerant society.
514 U.S. at 357.
For nearly a century, the rights afforded by the First Amendment have
been protected against intrusion by the States as an “inseparable aspect of the
‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment,
which embraces freedom of speech.” NAACP, 357 U.S. at 460; see Gitlow, 268
U.S. 652. During this time, the Supreme Court has repeatedly recognized that
encompassed within this liberty interest is the right of individuals to privacy in
their political beliefs and associations, wherein “thought and action are
presumptively immune from inquisition by political authority.” Sweezy, 354 U.S.
at 266 (Frankfurter, J., concurring). This privacy interest “yield[s] only to a
‘subordinating interest of the State [that is] compelling,’ and then only if there is a
‘substantial relation between the information sought and [an] overriding and
compelling state interest.’” Brown, 459 U.S. at 91-92 (second and third
alterations in original) (citation and internal quotation marks omitted) (quoting
Sweezy, 354 U.S. at 265; Gibson, 372 U.S. at 546).
21
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No. 83700-1-I/22
It is with cognizance of these principles that we consider whether SPD and
the City may disclose the Does’ identities in the investigatory records at issue.
B
The Does assert that the disclosure of their identities in the requested
records will violate their First Amendment right to political anonymity.9 They
contend that the trial court erred by determining that no constitutional privacy
interest is implicated in this situation. We agree.
Both the Does’ attendance at the January 6 rally and their compelled
statements to investigators implicate the First Amendment. Exposure by the
government of this information, through disclosure of the unredacted requested
records, would impinge the Does’ constitutional right to anonymity in their political
beliefs and associations.
Pursuant to United States Supreme Court decisional authority, the State
must demonstrate that disclosure of the unredacted requested records would
further a compelling state interest and that such disclosure is narrowly tailored to
achieve that state interest. Because no compelling state interest exists to justify
disclosure of the unredacted records, the Does are entitled to an injunction
prohibiting exposure by the government of their identities.
9 The parties’ initial appellate briefing primarily concerns whether the Does are entitled to
a preliminary injunction pursuant to statutory exemptions set forth in the PRA. However, the
Does additionally contended that disclosure would violate their First Amendment rights.
Following oral argument, the parties submitted supplemental briefing addressing this issue more
thoroughly. Because the answer to the Does’ request for a remedy is found in First Amendment
jurisprudence, we need not address the parties’ arguments regarding PRA statutory exemptions
to disclosure.
22
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No. 83700-1-I/23
1
The Does assert that disclosure of their identities in the requested records,
both with regard to their attendance at the January 6 rally and their statements
made to investigators concerning their political views and affiliations, will violate
their First Amendment right to privacy. They aver that the trial court erred in two
respects. First, the Does contend that the trial court erroneously concluded that,
because the January 6 rally was a public event, the Does had no right to privacy
in attending that event. Second, they argue that the trial court erred by
concluding that they had not demonstrated a sufficient probability of a “chilling
effect” on their constitutional rights to be entitled to the relief sought.
Sueoka contends, on the other hand, that the Does’ attendance at the
January 6 rally is not protected by a constitutional privacy right. He further
contends that, even if disclosure of the Does’ identities in the requested records
implicates a First Amendment right, the Does relinquished that right by
cooperating with the OPA’s investigation. Finally, Sueoka asserts that the trial
court properly determined that the Does have not shown a sufficient probability of
harm to establish a constitutional right to privacy.
The Does’ contentions, consistent as they are with United States Supreme
Court decisional authority, are the more persuasive. We conclude that the Does
have a First Amendment privacy right in their identities in the requested records.
(a)
The First Amendment to the United States Constitution, as incorporated
through the due process clause of the Fourteenth Amendment, “protects against
23
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No. 83700-1-I/24
the compelled disclosure of political associations and beliefs.” Brown, 459 U.S.
at 91; see also Buckley, 424 U.S. at 64 (noting that the Court had “repeatedly
found that compelled disclosure, in itself, can seriously infringe on privacy of
association and belief guaranteed by the First Amendment”). Even when the
State takes “no direct action” to abridge an individual’s First Amendment rights,
those rights may be impinged by “varied forms of governmental action” that “may
appear to be totally unrelated to protected liberties.” NAACP, 357 U.S. at 461.
In other words, it is not solely a “heavy-handed frontal attack” by government that
may abridge an individual’s First Amendment rights; such constitutional
transgression may also arise from “more subtle governmental interference.”
Bates, 361 U.S. at 523. Indeed, simple “exposure by government” may be
sufficient to impinge such rights. Bates, 361 U.S. at 528.
Here, the trial court concluded, and Sueoka presently asserts, that the
Does have no right to privacy in having attended a public political rally. The trial
court reasoned:
Whether a person attended a public rally is not the type of
intimate detail that courts in Washington have said should remain
private. Washington courts have not previously found an inherent
right to privacy in attendance at a public political rally. Attending a
public rally is not an act that is inherently cloaked in privacy.
In so ruling, the court was clearly referring to Washington law concerning
whether an individual has a statutory right to privacy pursuant to the PRA.10 We
10 Because the PRA does not define “right to privacy,” our Supreme Court adopted the
common law tort definition of the term, which provides, in part, that the privacy right is implicated
when the “‘intimate details of [a person’s] life are spread before the public gaze in a manner
highly offensive to the ordinary reasonable [person].’” Hearst Corp. v. Hoppe, 90 Wn.2d 123,
136, 580 P.2d 246 (1978) (quoting RESTATEMENT (SECOND) OF TORTS § 652D, at 386 (AM. LAW
INST. 1977)). The trial court referenced this language in ruling that the Does’ attendance at the
January 6 rally does not implicate a privacy right.
24
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No. 83700-1-I/25
do not evaluate, however, whether disclosure of the Does’ identities is precluded
by a statutory right to privacy.
Rather, we conclude that, pursuant to United States Supreme Court
decisional authority, the disclosure by the government of the Does’ identities in
the requested records would violate their federal constitutional right to anonymity
in political belief and association. See, e.g., Watchtower Bible, 536 U.S. 150;
McIntyre, 514 U.S. 334; Brown, 459 U.S. 87; Buckley, 424 U.S. 1; Gibson, 372
U.S. 539; Shelton, 364 U.S. 479; Talley, 362 U.S. 60; Bates, 361 U.S. 516;
Uphaus, 360 U.S. 72; NAACP, 357 U.S. 449; Watkins, 354 U.S. 178; Sweezy,
354 U.S. 234; Wieman, 344 U.S. 183. Such governmental action would expose
to the public not only records evidencing the Does’ attendance at the January 6
rally, but also the transcripts of interviews in which the Does were compelled to
“articulate [their] political views,” discuss whether they were “affiliated with any
political groups,” and describe “[their] impressions of, and reactions to, the
content of the Rally.” The requested records thus implicate the Does’ personal
political views and their affiliations, if any, with political organizations.11 “It cannot
Because, at common law, sovereign immunity precluded actions against the government,
it comes as little surprise that in this case—wherein the actions of government are directly at
issue—the answer is found not in the common law but in the First and Fourteenth Amendments—
which are each solely directed at governmental action.
11 The trial court did not consider whether the Does’ statements regarding their political
beliefs and associations, compelled to be disclosed during the OPA investigation, implicated
either a statutory or constitutional right to privacy. Instead, the court found that there was “no
evidence . . . indicating whether the requested records sought contain explicit information about
the Does’ political beliefs or associations.”
The record does not support this finding. The Does’ declarations state that each was
“ordered to answer all questions asked, truthfully and completely, and that failure to do so may
result in discipline up to and including termination.” These questions included “why [they]
attended” the rally, whether they attended “to articulate [their] political views,” whether they were
“showing support for a political group” or were “affiliated with any political groups,” and what were
their “impressions of, and reactions to, the content” of the rally. In their declarations, each of the
Does stated: “Because I believed I was under a standing order to answer these personal
25
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No. 83700-1-I/26
require argument,” the United States Supreme Court has stated, “that inquiry
would be barred to ascertain whether a citizen had voted for one or the other of
the two major parties either in a state or national election.” Sweezy, 354 U.S. at
266. If such direct governmental action would impinge the Does’ constitutional
privacy interests, then so, too, does exposure by the government of that same
information pursuant to a records request. See Bates, 361 U.S. at 523; NAACP,
357 U.S. at 461.
Sueoka nevertheless contends that our Supreme Court’s decision in
Spokane Police Guild v. Liquor Control Board, 112 Wn.2d 30, 769 P.2d 283
(1989), “puts to rest any claim” that the Does’ attendance at the January 6 rally is
protected by a constitutional privacy right.12 In that case, the court considered
whether a statutory exemption precluded disclosure of an investigatory report
that identified police officers who had attended a party on Spokane Police Guild
Club premises. Spokane Police Guild, 112 Wn.2d at 31. The party, “variously
referred to as a bachelor party, stag show and strip show,” had been determined
to violate regulations of the liquor board. Spokane Police Guild, 112 Wn.2d at
31. Our Supreme Court held that disclosure of the report would not violate the
statutory right to privacy conferred by the statutory predecessor of the PRA.
Spokane Police Guild, 112 Wn.2d at 37-38. Recognizing that this privacy right
pertains “only to the intimate details of one’s personal and private life,” the court
reasoned that there was “no personal intimacy involved in one’s presence or
questions, I did so truthfully and as completely as possible.” These declarations are themselves
evidence that the requested records contain statements regarding the Does’ political beliefs and
affiliations.
12 Br. of Resp’t/Cross Appellant at 31.
26
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No. 83700-1-I/27
conduct at such a well attended and staged event which would be either lost or
diminished by being made public.” Spokane Police Guild, 112 Wn.2d at 38.
According to Sueoka, this holding compels the conclusion herein that the
Does’ attendance at the January 6 rally—occurring, as it did, in a public
location13—does not implicate a right to privacy. However, in so asserting,
Sueoka confuses the statutory privacy right bestowed by the PRA with the
constitutional privacy right deriving from the First Amendment. In Spokane
Police Guild, the disclosure of the officers’ political beliefs and associations was
not at issue; accordingly, the court considered only whether a statutory
exemption prohibited disclosure of the investigative report. 112 Wn.2d at 37-38.
Moreover, in focusing solely on the Does’ attendance at a public event, Sueoka
disregards that disclosure of the requested records would additionally expose the
Does’ statements regarding their political beliefs and associations, which the
Does were compelled to disclose during the OPA investigation. In short, Sueoka
asserts that Washington Supreme Court decisional authority concerning a
statutory right to privacy stemming from the common law of torts precludes a
determination that a federal constitutional right prohibits disclosure by a
government. This contention is wholly unavailing.
Sueoka additionally contends that the United States Supreme Court’s
decisional authority regarding the First Amendment right to political anonymity is
13 The Capitol Police issued six permits authorizing gatherings on January 6, 2021 on
property under its control. Jason Leopold, The Capitol Police Granted Permits For Jan. 6
Protests Despite Signs That Organizers Weren’t Who They Said They Were, BUZZFEED NEWS
(Sept. 17, 2021), https://www.buzzfeednews.com/article/jasonleopold/the-capitol-police-said-jan-
6-unrest-on-capitol-grounds [https://perma.cc/LWM5-P3MN].
27
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No. 83700-1-I/28
inapposite because, he argues, the Does “cannot be compared to members of
small and powerless political or religious groups,” and are not “seeking
anonymity from the government itself.”14 Again, we disagree.
Contrary to Sueoka’s assertion, the United States Supreme Court has not
limited the applicability of the First Amendment’s privacy right to members of
“small and powerless political or religious groups.” To the contrary, the Court has
recognized that “the deterrent and ‘chilling’ effect on the free exercise of
constitutionally enshrined rights of free speech, expression, and association” is
“the more immediate and substantial” when “the challenged privacy is that of
persons espousing beliefs already unpopular with their neighbors.” Gibson, 372
U.S. at 556-57. Nevertheless, the Court was clear that, “of course, all legitimate
organizations are the beneficiaries of these protections.” Gibson, 372 U.S. at
556.15 Moreover, the question is not whether an individual is a member of a
“small and powerless” group, as Sueoka asserts, but whether the individual
“espous[es] beliefs . . . unpopular with their neighbors,” Gibson, 372 U.S. at 557,
such that exposure of those beliefs could discourage the exercise of
constitutional rights.
Thus, it is the opprobrium that the community has for the individual’s
beliefs that is material to any “chilling effect” on constitutional rights.16 We are
14 Br. of Resp’t/Cross Appellant at 32.
15 In Gibson, a Florida legislative committee sought to subpoena NAACP membership
lists, 372 U.S. at 540-41, hence the Court’s reference to “organizations.” However, it was the
constitutional rights of the individuals whose identities would be disclosed in the membership lists
that was at issue. In any event, we see no reason to distinguish between “organizations” and
individuals on this point.
16 As discussed infra, case law does not support Sueoka’s assertion that the Does were
required to demonstrate a more substantial “chilling effect” to establish a First Amendment
privacy right in the requested records.
28
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No. 83700-1-I/29
cognizant that, in the Seattle community, the Does would likely face opprobrium
were their identities disclosed.17 This is likely notwithstanding the fact that the
OPA investigation determined that any allegations of unlawful or unprofessional
conduct against the Does were unsustained. We reach this conclusion with an
awareness of the events of recent years, including the Department of Justice
finding of the systemic use of excessive force by SPD officers (necessitating the
federal district court’s imposition of a consent decree), the horrific killing of
George Floyd and other unarmed Black individuals throughout our country, and
the eruption of protests, including in Seattle, in response to those incidents.18
Whether correctly or not, as Sueoka’s briefing demonstrates, the Seattle
community is likely to presume that the Does’ attendance at the January 6 rally
indicates that they are white supremacists who sought to undermine our nation’s
democracy. But whatever various individuals might infer, it remains true that all
17 In 2016, Donald Trump received 8 percent of the vote in Seattle precincts. Here’s How
Seattle Voters’ Support for Trump Compared to Other Cities’, SEATTLE TIMES (Nov. 17, 2016),
https://www.seattletimes.com/seattle-news/politics/heres-how-seattle-voters-support-for-trump-
stacks-up-to-other-u-s-cities/ [https://perma.cc/4PNL-G68W]. In 2020, he again received 8
percent of the vote in Seattle. Danny Westneat, Don’t Look Now, but Trump Did Better in Blue
King County Than He Did the Last Time, SEATTLE TIMES (Nov. 11, 2020),
https://www.seattletimes.com/seattle-news/politics/dont-look-now-but-trump-did-better-in-blue-
king-county-than-he-did-the-last-time/ [https://perma.cc/N8F8-TFHL].
18 Whether records are subject to disclosure must be determined without regard to the
motivation of the records requestor. RCW 42.56.080 (“Agencies shall not distinguish among
persons requesting records, and such persons shall not be required to provide information as to
the purpose for the request except to establish whether inspection and copying would violate
RCW 42.56.070(8) or 42.56.240(14), or other statute which exempts or prohibits disclosure of
specific information or records to certain persons.”); see also Livingston v. Cedeno, 164 Wn.2d
46, 53, 186 P.3d 1055 (2008) (holding that the Department of Corrections, in “its capacity as an
agency subject to” the PRA, “must respond to all public disclosure requests without regard to the
status or motivation of the requester”). However, when the impingement of constitutional
protections for speech and association are at issue, it is clear that courts may consider the
pertinent political and cultural atmosphere in determining whether exposure could discourage the
exercise of First Amendment rights.
29
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No. 83700-1-I/30
citizens, including public employees, may benefit from the constitutional right to
privacy in their political beliefs espoused by our nation’s highest court.19
As the Court has held, the mere compelling of an individual to disclose
“beliefs, expressions or associations is a measure of governmental interference.”
Watkins, 354 U.S. at 197. When these “forced revelations concern matters that
are unorthodox, unpopular, or even hateful to the general public, the reaction in
the life of [that individual] may be disastrous.” Watkins, 354 U.S. at 197; see also
Uphaus, 360 U.S. at 84 (Brennan, J., dissenting) (“[E]xposure and group
identification by the state of those holding unpopular and dissident views are
fraught with such serious consequences for the individual as to inevitably inhibit
seriously the expression of views which the Constitution intended to make free.”).
While we have no sympathy for those who sought to undermine our democracy
on January 6, 2021, the fact here is that the allegations that the Does were
engaged in unlawful or unprofessional conduct were not sustained. They did not
forfeit their First Amendment rights.
As our nation’s highest court long-ago made clear,
[a] final observation is in order. Because our disposition is
rested on the First Amendment as absorbed in the Fourteenth . . .
our decisions in the First Amendment area make[] plain that its
protections would apply as fully to those who would arouse our
society against the objectives of the petitioner. See, e.g., Near v.
Minnesota, 283 U.S. 697[, 51 S. Ct. 625, 75 L. Ed. 1357 (1931)];
Terminiello v. Chicago, 337 U.S. 1[, 69 S. Ct. 894, 93 L. Ed. 1131
19 Concurring in Wieman, 344 U.S. at 193, Justice Black recognized the importance of
ensuring that First Amendment protections are secured for all individuals:
Our own free society should never forget that laws which stigmatize and penalize
thought and speech of the unorthodox have a way of reaching, ensnaring and
silencing many more people than at first intended. We must have freedom of
speech for all or we will in the long run have it for none but the cringing and the
craven. And I cannot too often repeat my belief that the right to speak on matters
of public concern must be wholly free or eventually be wholly lost.
30
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No. 83700-1-I/31
(1949)]; Kunz v. New York, 340 U.S. 290[, 71 S. Ct. 312, 95 L. Ed.
280 (1951)]. For the Constitution protects expression and
association without regard to the race, creed, or political or religious
affiliation of the members of the group which invokes its shield, or
to the truth, popularity, or social utility of the ideas and beliefs which
are offered.
Button, 371 U.S. at 444-45.
Returning to Sueoka’s contentions, we are similarly unpersuaded by his
assertion that the Does cannot establish a First Amendment right to privacy
because, according to him, they are not “seeking anonymity from the government
itself.”20 In fact, as Sueoka notes, the Does have already been compelled to
disclose their political beliefs and associations to SPD and the City. However,
the government need not take “direct action” in order to unlawfully impinge an
individual’s constitutional privacy right. NAACP, 357 U.S. at 461. Rather,
“abridgement of such rights, even though unintended, may inevitably follow from
varied forms of governmental action,” including action that “may appear to be
wholly unrelated to protected liberties.” NAACP, 357 U.S. at 461.
Indeed, the United States Supreme Court has held that “First Amendment
rights are beyond abridgement either by legislation that directly restrains their
exercise or by suppression or impairment through harassment, humiliation, or
exposure by government.” Bates, 361 U.S. at 528 (Black & Douglas, JJ.,
concurring) (emphasis added); see also Shelton, 364 U.S. at 486-87 (“Public
exposure, bringing with it the possibility of public pressures upon school boards
to discharge teachers who belong to unpopular or minority organizations, would
simply operate to widen and aggravate the impairment of constitutional liberty.”).
20 Br. of Resp’t/Cross Appellant at 32.
31
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No. 83700-1-I/32
Here, the state action challenged is the government’s exposure, pursuant
to state statute, of the Does’ identities in the requested records, which implicate
their political beliefs and associations. Sueoka’s insinuation that the City’s
disclosure of the Does’ identities would not constitute governmental action is
simply wrong.
(b)
Sueoka additionally asserts that, even if disclosure of the Does’ identities
would impinge their constitutional rights, the Does willingly relinquished their right
to privacy. This is so, Sueoka contends, because the Does “had a right to keep
their political opinions private,” knew that their employer was subject to the PRA,
but nevertheless attended the January 6 rally and “then informed their employer
of their activities.”21 We disagree. Contrary to Sueoka’s assertion, the Does did
not relinquish their constitutional rights.
The facts are these. The Does submitted to interviews during an
investigation in which they were alleged to have violated the law or SPD policies
during their attendance at the January 6 rally. They were “ordered to answer all
questions asked, truthfully and completely.” They were informed that “failure to
do so may result in discipline up to and including termination.” They were then
questioned regarding their reasons for attending the January 6 rally, their political
beliefs and affiliations with political groups, if any, and their impressions of the
content of the rally. The Does answered these questions “truthfully and as
completely as possible” because they were under standing orders to do so.
21 Br. of Resp’t/Cross Appellant at 27-28.
32
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In other words, the Does did not “ha[ve] a right to keep their political
opinions private.” Nor, contrary to Sueoka’s assertion, did the Does voluntarily
“inform[] their employer of their activities.” Rather, the Does were placed in the
untenable position of either refusing to answer investigators’ questions, thus
risking their livelihoods, or cooperating with the investigation, thereby
compromising their constitutional rights.22
Nearly a century ago, the United States Supreme Court rejected the
notion that an indirect assault on constitutional protections due to a purported
“choice” is less insidious than is direct impingement of such rights. Frost v. RR
Comm’n of State of Cal., 271 U.S. 583, 593, 46 S. Ct. 605, 70 L. Ed. 2d 1101
(1926). There, a California statute precluded private carriers from the privilege of
using public highways for “transacting private business thereon” unless they
submitted to regulation lawfully imposed on common carriers. Frost, 271 U.S. at
591. The Supreme Court struck down the statute, which, it concluded, was
intended to protect the business of common carriers by controlling competition.
Frost, 271 U.S. at 591, 593. In so doing, the Court held that a state may not
require the relinquishment of a constitutional right as the basis to confer a
privilege. Frost, 271 U.S. at 593. Were it otherwise, “constitutional guaranties,
so carefully safeguarded against direct assault, [would be] open to destruction by
the indirect but no less effective process of requiring a surrender, which, though
in form voluntary, in fact lacks none of the elements of compulsion.” Frost, 271
22 Adopting Sueoka’s assertion that the Does’ cooperation in the investigation was
voluntary would also lead to the problematic conclusion that police officers need not cooperate in
such investigations. Little public good would flow from such a holding.
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No. 83700-1-I/34
U.S. at 593. To be given only “a choice between the rock and the whirlpool,”
wherein the option is to forego one’s livelihood or “submit to a requirement which
may constitute an intolerable burden,” is in reality, the Court announced, no
choice at all. Frost, 271 U.S. at 593.
Four decades later, the Supreme Court explicitly rejected the proposition
advanced by Sueoka herein—that statements obtained from police officers as a
result of those officers cooperating (in compliance with a lawful request to do so)
in investigations conducted by their employer or at their employer’s direction are
deemed voluntary. Garrity, 385 U.S. 493. In Garrity, police officers were ordered
to cooperate in an investigation by the New Jersey Attorney General regarding
“alleged irregularities in handling cases in the municipal courts” of certain New
Jersey boroughs. 385 U.S. at 494. Prior to questioning, each officer was warned
“(1) that anything he said might be used against him in any state criminal
proceeding; (2) that he had the privilege to refuse to answer if the disclosure
would tend to incriminate him; but (3) that if he refused to answer he would be
subject to removal from office.” Garrity, 385 U.S. at 494. After cooperating in the
investigation, the officers were convicted of conspiracy to obstruct the
administration of the traffic laws, and “their convictions were sustained over their
protests that their statements were coerced, by reason of the fact that, if they
refused to answer, they could lose their positions with the police department.”
Garrity, 385 U.S. at 495 (footnote omitted).
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No. 83700-1-I/35
The Supreme Court held that, where the officers were given the choice
between self-incrimination and losing their livelihoods, their statements were not
voluntary:
The choice given petitioners was either to forfeit their jobs or
to incriminate themselves. The option to lose their means of
livelihood or to pay the penalty of self-incrimination is the antithesis
of free choice to speak out or to remain silent. That practice, like
interrogation practices we reviewed in Miranda v. Arizona, 384 U.S.
436, 464-65[, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)], is “likely to
exert such pressure upon an individual as to disable him from
making a free and rational choice.” We think the statements were
infected by the coercion inherent in this scheme of questioning and
cannot be sustained as voluntary under our prior decisions.
Garrity, 385 U.S. at 497-98 (footnote omitted). Police officers, the Court
concluded, “are not relegated to a watered-down version of constitutional rights.”
Garrity, 385 U.S. at 500. Moreover, the Court therein confirmed that the rights
secured by the First Amendment are among those “rights of constitutional stature
whose exercise a State may not condition by the exaction of a price.” Garrity,
385 U.S. at 500.
As in Garrity, the Does here were informed by SPD, their employer, that
their continued employment could be contingent on their cooperation with the
investigation. The answers elicited from the Does during interviews directly
implicate speech protected by the First Amendment. The Does, as with the
police officers in Garrity, were afforded a choice “‘between the rock and the
whirlpool,’” 385 U.S. at 496 (quoting Stevens v. Marks, 383 U.S. 234, 243, 86 S.
Ct. 788, 15 L. Ed. 2d 724 (1966)), whereby only by relinquishing their
constitutional privacy interests could the Does ensure their continued
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No. 83700-1-I/36
employment. “[D]uress is inherent” when statements are thusly obtained.
Garrity, 385 U.S. at 498.
As the precedent of our nation’s highest court makes clear, the Does’
statements to investigators were not voluntary. We reject Sueoka’s assertion
that the Does relinquished their constitutional rights by cooperating with the
OPA’s investigation.
(c)
Sueoka next contends that the Does have not set forth sufficient evidence
that harm would result from disclosure of their identities in the requested records,
such that they should be entitled to an injunction precluding such disclosure. He
asserts that the Does must demonstrate that disclosure would create a “chilling
effect” on their constitutional rights and that they have not done so. Again, we
disagree. Adhering to precedent from our Supreme Court, and cognizant that
federal courts have determined that a “chilling effect” may, at times, be assumed,
we hold that the evidence submitted by the Does is sufficient to meet the
necessary showing of potential harm.
In Doe v. Reed, the United States Supreme Court considered whether,
pursuant to Washington’s PRA, the disclosure of referendum petitions, and
thereby of the identities of the petition signers, would violate the First
Amendment. 561 U.S. 186. The Court therein concluded that disclosure would
not violate the First Amendment with respect to referendum petitions in general.
Reed, 561 U.S. at 202. However, the Court articulated the standard it had
applied “in related contexts,” that “those resisting disclosure can prevail under the
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No. 83700-1-I/37
First Amendment if they can show ‘a reasonable probability that the compelled
disclosure [of personal information] will subject them to threats, harassment, or
reprisals from either Government officials or private parties.’” Reed, 561 U.S. at
200 (alteration in original) (quoting Buckley, 424 U.S. at 74).
Our Supreme Court applied this standard in evaluating the constitutionality
of a discovery order compelling the disclosure of meeting minutes of the
Freedom Socialist Party. See Snedigar v. Hoddersen, 114 Wn.2d 153, 156, 786
P.2d 781 (1990). In that case, the court reversed a decision of this court, in
which we had held that the party resisting the discovery order was required to
make “an initial showing of actual infringement on First Amendment rights.”
Snedigar, 114 Wn.2d at 158. This was wrong, our Supreme Court explained,
because “[t]he party asserting the First Amendment associational privilege is only
required to show some probability that the requested disclosure will harm its First
Amendment rights.” Snedigar, 114 Wn.2d at 158. And, indeed, in that case, the
Party’s national secretary submitted affidavits stating that (1) “Party members
and supporters had been subjected to acts of reprisal and harassment in the
past,” and (2) that “the expectation of confidentiality in internal discussions [was]
essential to the Party’s survival.” Snedigar, 114 Wn.2d at 163. These affidavits,
our Supreme Court held, were sufficient to demonstrate that disclosure would
“chill” the Party’s constitutional rights. Snedigar, 114 Wn.2d at 164.
In evaluating whether sufficient probability of harm was shown, our
Supreme Court in Snedigar recognized that some courts have explicitly held that
“a concrete showing of ‘chill’ is unnecessary” to determine that disclosure would
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No. 83700-1-I/38
impinge First Amendment rights. 114 Wn.2d at 162 (citing Black Panther Party v.
Smith, 661 F.2d 1243, 1267-68, (D.C. Cir. 1981); Britt v. Superior Court, 20 Cal.
3d 844, 855, 574 P.2d 766, 143 Cal. Rptr. 695 (1978)). Indeed, the court noted,
some courts “have overlooked the absence of a factual record of past
harassment and . . . assumed that disclosure of information” would chill such
rights. Snedigar, 114 Wn.2d at 162 (citing Shelton, 364 U.S. at 485-86; Talley,
362 U.S. at 64; Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. Waterfront
Comm’n of New York, 667 F.2d 267, 272 (2d Cir.1981); Pollard v. Roberts, 283
F. Supp. 248, 258 (E.D. Ark. 1968), aff’d, 393 U.S. 14, 89 S. Ct. 47, 21 L. Ed. 2d
14 (1968)).
Moreover, as the Second Circuit has recognized, “a factual record of past
harassment is not the only situation in which courts have upheld a First
Amendment right of non-disclosure.” Int’l Longshoremen’s Ass’n, 667 F.2d at
271. Rather,
[t]he underlying inquiry must always be whether a compelling
governmental interest justifies any governmental action that has
“the practical effect ‘of discouraging’ the exercise of constitutionally
protected political rights,” “even if any deterrent effect . . . arises . . .
as an unintended but inevitable result of the government’s conduct
in requiring disclosure.”
Int’l Longshoremen’s Ass’n, 667 F.2d at 271 (citation omitted) (quoting NAACP,
357 U.S. at 461; Buckley, 424 U.S. at 65). Based on this principle, courts,
including the United States Supreme Court, have in various circumstances
“adopted a commonsense approach [that] recognized that a chilling effect was
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No. 83700-1-I/39
inevitable.” Int’l Longshoremen’s Ass’n, 667 F.2d at 272 (citing Shelton, 364 U.S.
at 486; Pollard, 283 F. Supp. at 258).23
Here, the Does’ declarations state that they have “a significant fear that
disclosure of [their] attendance at the January 6 Rally would result in significant
jeopardy to [their] personal safety and [their] ability to provide effective law
enforcement to the community.” Two of the Does described their fears for the
safety and well-being of their families were their identities disclosed, one noting
“the extreme volatility that has gone hand in hand with politics in this region over
the last year regarding law enforcement.” The Does additionally submitted the
declarations of other SPD officers who stated that they had endured harassment
and threats made against them and their families from members of the public.
23 Such a “commonsense approach”—which assumes a “chilling effect” on speech and
associational rights—has been utilized when disclosure was required to be made to a public
employer and when the individuals seeking anonymity espoused beliefs unpopular in their
communities.
For instance, in Shelton, the Supreme Court recognized that impingement of teachers’
rights to free association “is conspicuously accented when the teacher serves at the absolute will
of those to whom the disclosure must be made.” 364 U.S. at 486. “[T]he pressure upon a
teacher to avoid any ties which might displease those who control his professional destiny would
be constant and heavy.” Shelton, 364 U.S. at 486; see also Int’l Longshoremen’s Ass’n, 667 F.2d
at 272 (recognizing that the investigatory body had “pervasive control over the economic
livelihood” of those seeking anonymity).
Likewise, in Pollard, there was “no evidence” that the individuals seeking anonymity had
“been subjected to reprisals on account of” their contributions to the Arkansas Republican Party.
283 F. Supp. at 258. Nevertheless, given the unpopularity of the party in the state at that time,
the court held that “it would be naïve not to recognize” that disclosure would subject the
contributors to “potential economic or political reprisals,” thus discouraging the exercise of
constitutional rights. Pollard, 283 F. Supp. at 258. The court described the constitutional injury
thereby inflicted thusly:
To the extent that a public agency or officer unreasonably inhibits or discourages
the exercise by individuals of their right to associate with others of the same
political persuasion in the advocacy of principles and candidates of which and of
whom they approve, and to support those principles and candidates with their
money if they choose to do so, that agency or officer violates private rights
protected by the First Amendment.
Pollard, 283 F. Supp. at 258.
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No. 83700-1-I/40
Consistent with the cases cited above, we conclude that the Does have
submitted sufficient evidence that disclosure of their identities would discourage
the exercise of political speech and associational rights.24 In so holding, we are
mindful that it is not only the Does’ constitutional rights that may be “chilled” by
disclosure here, but also those of other public employees whose employers are
subject to the PRA. Indeed, as the United States Supreme Court has
recognized, in addition to the impact on the exercise of rights by those seeking
anonymity, there is a “more subtle and immeasurable effect upon those who tend
to adhere to the most orthodox and uncontroversial views and associations in
order to avoid a similar fate at some future time.” Watkins, 354 U.S. at 197-98.
We conclude that disclosure of the Does’ identities in the requested
records constitutes governmental action that would impinge their First
Amendment rights. This is so despite the public nature of the January 6 rally.
We find unmeritorious Sueoka’s contentions that the Does relinquished their
constitutional rights by cooperating with the OPA’s investigation or that they
failed to demonstrate that disclosure would discourage the exercise of such
rights. Having so concluded, we must determine whether the State’s interest in
impinging those rights is sufficient to nevertheless mandate disclosure.
24 We reach this conclusion notwithstanding Sueoka’s assertion, in supplemental briefing,
that the identities of the Does are already publicly known. As our Supreme Court has held, an
individual’s statutory right to privacy is not nullified because some members of the public may
already know that individual’s identity. Bainbridge Island Police Guild, 172 Wn.2d at 414 (“[J]ust
because some members of the public may already know the identity of the person in the report
does not mean that an agency does not violate the person’s right to privacy by confirming that
knowledge through its production.”). The same is certainly true of the right to privacy inhering in
the First Amendment to the United States Constitution.
40
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No. 83700-1-I/41
(d)
Before we do so, however, we must address a related contention. In a
statement of additional authorities submitted following oral argument, Sueoka
asserts that, because the Does did not notify the attorney general of any intent to
challenge the constitutionality of the PRA, we cannot consider whether the PRA
violates the federal constitution if it is construed so as to require disclosure of
unredacted records in this case.
This ground has been previously trod. Indeed, the District Court of the
Western District of Washington considered this very issue in Roe v. Anderson,
2015 WL 4724739 (W.D. Wash. 2015), which we cite as evidence of our state
attorney general’s official position on this aspect of PRA analysis. In the cited
case, certain erotic dancers and managers of an erotic dance studio sought to
enjoin the disclosure of their personal information pursuant to a PRA request.
Anderson, 2015 WL 4724739, at *1. They asserted that disclosure would violate
their constitutional rights to privacy and free expression and sought a declaration
that the PRA, as applied to them, was unconstitutional. Anderson, 2015 WL
4724739, at *1.
At the court’s invitation, the Washington attorney general filed an amicus
brief asserting that the PRA “does not require the disclosure of information
protected from disclosure by the Constitution” because “its exemptions
incorporate any constitutionally-required limitation on such disclosures.”
Anderson, 2015 WL 4724739, at *1 (emphasis added). The “other statute[s]”
provision, RCW 42.56.070(1), the attorney general explained, is a “‘catch all’
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No. 83700-1-I/42
saving clause” that “does not require a disclosure that would violate the
Constitution.” Anderson, 2015 WL 4724739, at *2 (emphasis added). Citing
decisional authority from our Supreme Court, the attorney general clarified that
“[i]f the requested records are constitutionally protected from
public disclosure, that protection exists without any need of
statutory permission, and may constitute an exemption under the
PRA even if not implemented through an explicit statutory
exemption.”
“In other words, it is not necessary to read the PRA in
conflict with the Constitution when the Act itself recognizes and
respects other laws (including constitutional provisions) that
mandate privacy or confidentiality.”
Anderson, 2015 WL 4724739, at *2-3 (emphasis added).
The district court held that “[t]he State is correct.” Anderson, 2015 WL
4724739, at *3. “The PRA, by design, cannot violate the Constitution, and
constitutional protections (such as freedom of expression) are necessarily
incorporated as exemptions, just like any other express exemption enumerated in
the PRA.” Anderson, 2015 WL 4724739, at *3.
We agree with and adopt this analysis. Thus, once the constitutional right
is established and the constitutional injury that disclosure would cause is shown,
it is entirely unnecessary for the citizen to establish an additional entitlement to
an injunction in order to preclude disclosure. The law is clear and the principle
simple—the government may not violate a person’s First Amendment rights,
even in the absence of an injunction specifically forbidding it from doing so.25
2
The United States Supreme Court has repeatedly affirmed that
25 See discussion infra § III C.
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No. 83700-1-I/43
[t]he right to privacy in one’s political associations and beliefs will
yield only to a “‘subordinating interest of the State [that is]
compelling,’” NAACP[, 357 U.S.] at 463 (quoting Sweezy, 354 U.S.
[at 265] (opinion concurring in result)), and then only if there is a
“substantial relation between the information sought and [an]
overriding and compelling state interest.” Gibson[, 372 U.S. at
546].
Brown, 459 U.S. at 91-92 (some alterations in original). Thus, having concluded
that disclosure of the Does’ identities in the requested records would impinge
their First Amendment rights, we must determine whether an overriding and
compelling state interest nevertheless requires such disclosure.
For its part, the City contends that a less stringent standard should apply
because, according to the City, “public employees have diminished First
Amendment rights, even for purely private speech.”26 Not so. Police officers,
such as the Does, “are not relegated to a watered-down version of constitutional
rights.” Garrity, 385 U.S. at 500. The City’s assertion to the contrary, reliant as it
is on inapposite decisional authority, is unpersuasive.
We conclude that the State has no compelling interest in disclosing the
Does’ identities in the requested records. The state interest in disclosing the
entirety of a particular public record is illuminated by the purpose of the PRA and
its scope, as determined by our legislature and Supreme Court. Such
considerations demonstrate that the state interest here falls short of the standard
required to impinge the Does’ First Amendment rights. We thus hold that the
State has no compelling interest in disclosing the Does’ identities in the
requested records.
26 City of Seattle, Suppl. Mem. at 2.
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No. 83700-1-I/44
(a)
We first address the City’s argument, set forth in supplemental briefing,
that the state actor need not demonstrate a compelling interest in order to
impinge the Does’ constitutional rights. The City, itself an employer of vast
numbers of public employees, asserts that “public employees have diminished
First Amendment rights, even for purely private speech.”27 Hence, the City
contends, the constitutional rights of public employees, unlike those of other
citizens, can be impinged absent the demonstration of a compelling state
interest. We disagree.
When the State seeks to compel disclosure of an individual’s political
beliefs and associations, it can do so only by demonstrating a compelling state
interest with sufficient relation to the information sought to be disclosed. See,
e.g., Brown, 459 U.S. at 91-92; Gibson, 372 U.S. at 546; NAACP, 357 U.S. at
463; Sweezy, 354 U.S. at 265. That the State’s interest must be compelling
reflects the United States Supreme Court’s recognition that “political freedom of
the individual” is a “fundamental principle of a democratic society,” Sweezy, 354
U.S. at 250, and that “compelled disclosure, in itself, can seriously infringe on
privacy of association and belief guaranteed by the First Amendment.” Buckley,
424 U.S. at 64.
Moreover, as we have discussed, our nation’s highest Court has rejected
the notion that public employees are not entitled to the same stature of
constitutional rights as are other citizens. In 1967, the Court in Garrity
27 City of Seattle, Suppl. Mem. at 2.
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No. 83700-1-I/45
considered whether police officers, by virtue of being compelled to cooperate in
an investigation by the New Jersey Attorney General, relinquished the
constitutional right against self-incrimination. 385 U.S. at 494-98. The Court
determined that the statements of the police officers, who were given the choice
between self-incrimination and losing their livelihoods, were not voluntary.
Garrity, 385 U.S. at 497-98. In so holding, the Court “conclude[d] that policemen,
like teachers and lawyers, are not relegated to a watered-down version of
constitutional rights.” Garrity, 385 U.S. at 500.
In asserting to the contrary—that the Does are, indeed, condemned to a
diluted version of First Amendment rights—the City urges us to apply the
“balancing test” set forth by the Supreme Court in Pickering v. Board of
Education of Township High School District 205, Will County, Ill., 391 U.S. 563,
88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).28 The City’s reliance on Pickering is
misplaced.
In Pickering, a public school teacher submitted to a local newspaper a
letter regarding a proposed tax increase that was critical of the manner in which
the school board and superintendent had “handled past proposals to raise new
revenue for the schools.” 391 U.S. at 564. The teacher was dismissed from his
position pursuant to an Illinois statute that permitted such dismissal for actions
detrimental to the interests of the school system. Pickering, 391 U.S. at 564-65.
He thereafter filed suit, asserting that the Illinois statute was unconstitutional as
28 See City of Seattle, Suppl. Mem. at 6 (“It is this balancing test, not strict scrutiny, that
applies to disclosure of the public records containing employees’ speech.”).
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applied pursuant to the First and Fourteenth Amendments. Pickering, 391 U.S.
at 565.
In considering the constitutionality of the Illinois statute, the Court
recognized that “the State has interests as an employer in regulating the speech
of its employees that differ significantly from those it possesses in connection
with regulation of the speech of the citizenry in general.” Pickering, 391 U.S. at
568. Thus, the Court announced what has come to be known as the “Pickering
balancing test,”29 which seeks to “arrive at a balance between the interests of the
[public employee], as a citizen, in commenting upon matters of public concern
and the interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” Pickering, 391 U.S. at 568.
However, the teacher’s statements in Pickering were “neither shown nor
[could] be presumed to have in any way either impeded the teacher’s proper
performance of his daily duties in the classroom or to have interfered with the
regular operation of the schools generally.” 391 U.S. at 572-73 (footnote
omitted). The Court held that, in such circumstances, “the interest of the school
administration in limiting teachers’ opportunities to contribute to public debate is
not significantly greater than its interest in limiting a similar contribution by any
member of the general public.” Pickering, 391 U.S. at 573. In other words, the
“Pickering balancing test,” which the City urges us to apply here, is applicable
29 See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 164 L. Ed. 2d 689
(2006) (describing the “two inquiries to guide interpretation of the constitutional protections
accorded to public employee speech” as set forth in “Pickering and the cases decided in its
wake”); Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 900, 904-05 (9th Cir. 2021) (describing
the “Pickering balancing test”). Neither of these opinions, both of which are cited by the City, is
apposite to the circumstances presented in this case.
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No. 83700-1-I/47
only when a public employee’s speech may affect the employer’s operations.
See also Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 164 L. Ed. 2d
689 (2006) (“A government entity has broader discretion to restrict speech when
it acts in its role as employer, but the restrictions it imposes must be directed at
speech that has some potential to affect the entity’s operations.” (emphasis
added)). Only then may a government employer have “an adequate justification
for treating the employee differently from any other member of the general
public,” thus permitting it to restrict the public employee’s speech. Garcetti, 547
U.S. at 418.
Indeed, in Pickering, the United States Supreme Court explicitly rejected
the proposition that public employees are entitled to lesser constitutional
protections simply by virtue of their public employment:
To the extent that the Illinois Supreme Court’s opinion may
be read to suggest that teachers may constitutionally be compelled
to relinquish the First Amendment rights they would otherwise enjoy
as citizens to comment on matters of public interest in connection
with the operation of the public schools in which they work, it
proceeds on a premise that has been unequivocally rejected in
numerous prior decisions of this Court. E.g., Wieman v. Updegraff,
344 U.S. 183[, 73 S. Ct. 215, 97 L. Ed. 2d 216] (1952); Shelton v.
Tucker, 364 U.S. 479[, 81 S. Ct. 247, 5 L. Ed. 2d 231] (1960);
Keyishian v. Board of Regents, 385 U.S. 589[, 87 S. Ct. 675, 17 L.
Ed. 2d 629] (1967). “[T]he theory that public employment which
may be denied altogether may be subjected to any conditions,
regardless of how unreasonable, has been uniformly rejected.”
Keyishian[, 385 U.S.] at 605-06.
391 U.S. at 568 (some alterations in original).
Put simply, the notion that the Does, as public employees, “have curtailed
First Amendment rights,” as the City brazenly asserts,30 is directly contradicted
30 City of Seattle. Suppl. Mem. at 5.
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by United States Supreme Court decisional authority. Unlike this case, each of
the cases cited by the City involves an adverse employment action based on a
speech restriction that precluded public employees from engaging in speech
alleged to injuriously impact their employer’s operations.31 Indeed, it is only
when a public employee’s speech “has some potential to affect [the employer’s]
operations” that the employer may have “an adequate justification for treating the
employee differently from any other member of the general public.” Garcetti, 547
U.S. at 418. This rule is premised on the recognition that the government
possesses a “legitimate purpose in ‘promot[ing] efficiency and integrity in the
discharge of official duties, and . . . maintain[ing] proper discipline in the public
service.’” Connick v. Myers, 461 U.S. 138, 150-51, 103 S. Ct. 1684, 75 L. Ed. 2d
708 (1983) (some alterations in original) (quoting Ex parte Curtis, 106 U.S. 371,
373, 1 S. Ct. 381, 27 L. Ed. 232 (1882)).32 Such principles do not apply to the
facts of this case.33
31 See Progressive Democrats for Soc. Just. v. Bonta, 588 F. Supp. 3d 960 (N.D. Cal.
2022); Garcetti, 547 U.S. 410; City of San Diego, Cal. v. Roe, 543 U.S. 77, 125 S. Ct. 521, 160 L.
Ed. 2d 410 (2004); Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994);
Pickering, 391 U.S. 563; Hernandez v. City of Phoenix, 43 F. 4th 966 (9th Cir. 2022); Moser, 984
F.3d 900; Berry v. Dep’. of Soc. Servs., 447 F.3d 642 (9th Cir. 2006). For the reasons described
above, each of these cases is inapposite here.
32 In Connick, Justice Brennan disagreed with the majority’s balancing of the competing
considerations set forth in Pickering. 461 U.S. at 157-58 (Brennan, J., dissenting). However, as
pertinent here, he adeptly explained that the government, as a public employer, has an interest in
regulating employee speech only when such speech may impact the government’s ability to
perform its duties. He wrote:
The balancing test articulated in Pickering comes into play only when a
public employee’s speech implicates the government’s interests as an employer.
When public employees engage in expression unrelated to their employment
while away from the workplace, their First Amendment rights are, of course, no
different from those of the general public.
Connick, 461 U.S. at 157 (Brennan, J., dissenting) (citing Pickering, 391 U.S. at 574).
33 The City also asserts that our Supreme Court’s decision in Service Employees
International Union Local 925 v. University of Washington, 193 Wn.2d 860, 447 P.3d 534 (2019)
(SEIU), indicates that “disclosure of public records is mandated by the PRA notwithstanding any
speech rights or a chilling effect thereon.” City of Seattle, Suppl. Mem. at 3. We disagree.
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No. 83700-1-I/49
Here, the Does’ employer, SPD, did not impose a restriction on the Does’
speech. Nor does the speech at issue—the Does’ attendance at a political rally
and their statements regarding their political views and affiliations—have any
impact on their employer’s operations. Indeed, any allegation that the Does
engaged in conduct contrary to their employer’s policies was found to be
unsustained.
We decline the City’s invitation to contravene United States Supreme
Court decisional authority in order to restrict public employee speech in
circumstances beyond those in which such speech may interfere with the public
employer’s operations. Instead, we take the United States Supreme Court at its
word that police officers “are not relegated to a watered-down version of
constitutional rights.” Garrity, 385 U.S. at 500; see also Pickering, 391 U.S. at
568. Similarly, we recognize the Supreme Court’s repeated affirmations that
“[t]he right to privacy in one’s political associations and beliefs will yield only to a
‘subordinating interest of the State [that is] compelling,’ and then only if there is a
‘substantial relation between the information sought and [an] overriding and
compelling state interest.’” Brown, 459 U.S. at 91-92 (second and third
In that decision, our Supreme Court addressed only whether particular faculty e-mails
relating to union organizing constitute “public records” pursuant to the PRA. SEIU, 193 Wn.2d at
867-76. Although the labor union seeking to enjoin disclosure of the requested e-mails asserted
that “their release would chill union organizing efforts, restrain speech, and violate individuals’
privacy rights,” SEIU, 193 Wn.2d at 865, our Supreme Court explicitly stated that its “holding on
the ‘scope of employment’ test does not dispose of” the labor union’s other arguments, including
“assertions of statutory and constitutional exemptions from PRA coverage.” SEIU, 193 Wn.2d at
876.
Contrary to the City’s assertion, our Supreme Court did not suggest in that decision that
the constitutional rights of our state’s citizens can be summarily dismissed on the basis of a
legislative enactment. While we agree with the City that the PRA is an important statute, it
nevertheless remains merely a statute. See Freedom Found., 178 Wn.2d at 695.
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No. 83700-1-I/50
alterations in original) (citation and internal quotations marks omitted) (quoting
Sweezy, 354 U.S. at 265; Gibson, 372 U.S. at 546). Accordingly, only if an
overriding and compelling state interest exists to impinge the Does’ constitutional
rights may their identities be disclosed in the requested records. As discussed
below, we determine that no such compelling interest exists.
(b)
The scope of the State’s interest in public record disclosure—and, thus,
whether the City, as a state actor, has a compelling interest in disclosing the
Does’ identities—is illuminated by the purpose of the PRA’s disclosure mandate.
“The basic purpose of the [PRA] is to provide a mechanism by which the public
can be assured that its public officials are honest and impartial in the conduct of
their public offices.” Cowles Publ’g Co., 109 Wn.2d at 719. The statute “ensures
the sovereignty of the people and the accountability of the governmental
agencies that serve them by providing full access to information concerning the
conduct of government.” Predisik, 182 Wn.2d at 903. Similarly, our legislature
has defined the policy of the PRA as such: “That, mindful of the right of
individuals to privacy and of the desirability of the efficient administration of
government, full access to information concerning the conduct of government on
every level must be assured as a fundamental and necessary precondition to the
sound governance of a free society.” RCW 42.17A.001(11); see also In re
Request of Rosier, 105 Wn.2d 606, 611, 717 P.2d 1353 (1986) (recognizing the
policy underlying the statute as “allow[ing] public scrutiny of government, rather
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No. 83700-1-I/51
than . . . promot[ing] scrutiny of particular individuals who are unrelated to any
governmental operation”).
To this end, while the PRA contains a broad mandate for disclosure, our
legislature also included in the statute an exemption whereby “[p]ersonal
information in files maintained for employees . . . of any public agency” are not
subject to disclosure “to the extent that disclosure would violate their right to
privacy.” RCW 42.56.230(3). This “right to privacy” is “invaded or violated,” such
that the statutory exemption applies, when disclosure of the information would be
“highly offensive to a reasonable person” and is “not of legitimate concern to the
public.”34 RCW 42.56.050.
The PRA does not define the “right to privacy.” Our Supreme Court thus
sought to “‘fill [this] definitional void’” by adopting the common law tort definition
set forth in the Restatement. Cowles Publ’g Co., 109 Wn.2d at 721 (quoting
Hearst Corp. v. Hoppe, 90 Wn.2d 123, 136, 580 P.2d 246 (1978)); see
RESTATEMENT (SECOND) OF TORTS §652D (AM. LAW INST. 1977). Employing this
definition, and consistent with the purpose of the PRA, our Supreme Court has
deemed significant to the question of privacy whether a public employee’s
conduct “occurred in the course of public service.” Cowles Publ’g Co., 109
Wn.2d at 726. “Instances of misconduct of a police officer while on the job are
not private, intimate, personal details of the officer’s life,” but rather, “are matters
34 We do not hold that the personal information exemption, RCW 42.56.230(3), a
statutory exemption set forth within the PRA, precludes disclosure of the Does’ identities in the
requested records. Rather, as discussed supra, it is the First Amendment to the United States
Constitution that precludes such disclosure, absent an overriding and compelling state interest.
Nevertheless, the purpose of the PRA and the scope of its disclosure mandate, as set forth by
our legislature and decisional authority interpreting the act, illuminates the state interest here at
issue.
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No. 83700-1-I/52
with which the public has a right to concern itself.” Cowles Publ’g Co., 109
Wn.2d at 726. Premised on this principle, the court held that “a law enforcement
officer’s actions while performing his public duties or improper off duty actions in
public which bear upon his ability to perform his public office” are not within the
ambit of conduct exempt from disclosure due to statutory “personal privacy.”
Cowles Publ’g Co., 109 Wn.2d at 727.
In addition, in determining whether a public employee’s statutory right to
privacy is implicated, the court has distinguished between “substantiated” and
“unsubstantiated” allegations. “[W]hen a complaint regarding misconduct during
the course of public employment is substantiated or results in some sort of
discipline, an employee does not have a right to privacy in the complaint.”
Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 215,
189 P.3d 139 (2008). However, the court has held that public employees have a
statutory right to privacy in their identities in connection with unsubstantiated
allegations of sexual misconduct, “because the unsubstantiated allegations are
matters concerning [the employees’] private lives.” Bainbridge Island Police
Guild, 172 Wn.2d at 413; see also Bellevue John Does, 164 Wn.2d at 215-16.
“An unsubstantiated or false accusation,” the court reasoned, “is not an action
taken by an employee in the course of performing public duties.” Bellevue John
Does, 164 Wn.2d at 215.
Similarly, our Supreme Court has concluded that whether allegations
against a public employee are substantiated bears on whether disclosure of the
employee’s identity is a matter of “legitimate” public concern. Bainbridge Island
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No. 83700-1-I/53
Police Guild, 172 Wn.2d at 416; Bellevue John Does, 164 Wn.2d at 221. Thus,
consistent with the PRA’s purpose to enable the public to oversee governmental
agencies, the court determined that the public has no legitimate interest in the
identities of public employees against whom unsubstantiated allegations of
misconduct were asserted. Bellevue John Does, 164 Wn.2d at 220. This is
because, when the allegations are unsubstantiated, precluding disclosure of the
employee’s identity would “not impede the public’s ability to oversee” government
investigations into alleged employee misconduct. Bellevue John Does, 164
Wn.2d at 220. Rather, disclosure in such circumstances, the court reasoned,
“‘serve[s] no interest other than gossip and sensation.’” Bellevue John Does, 164
Wn.2d at 221 (quoting Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405,
129 Wn. App. 832, 854, 120 P.3d 616 (2005)).
The state interest in disclosure pursuant to the PRA is to uphold the
purpose of the statute—that is, to enable the public to ensure “that its public
officials are honest and impartial in the conduct of their public offices.” Cowles
Publ’g Co., 109 Wn.2d at 719 (emphasis added); see also RCW 42.56.030 (“The
people insist on remaining informed so that they may maintain control over the
instruments that they have created.”). To that end, in the context of defining the
scope of statutory exemptions to disclosure, our Supreme Court has determined
that disclosure of the identities of public employees is not permitted when (1) the
allegations asserted against the employees are unsubstantiated and (2) the
conduct did not occur in the course of public service or occur off-duty and impact
the performance of public duties. Bainbridge Island Police Guild, 172 Wn.2d at
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No. 83700-1-I/54
413; Bellevue John Does, 164 Wn.2d at 213-16, 221; Cowles Publ’g Co., 109
Wn.2d at 726. In other words, in such circumstances, the State does not have
an interest in disclosing the employees’ identities.
Significantly, in those cases, whether disclosure of the public officials’
identities was precluded was determined pursuant to statutory exemptions, not
premised upon the disclosure’s impingement on constitutional First Amendment
rights. Thus, the public officials’ interests at issue in those cases, not being of
constitutional import, were less significant than those presented here, where the
Does’ First Amendment rights are implicated. Nevertheless, here, as in those
cases, the Does’ alleged misconduct did not occur in the course of their public
duties, and the allegations against the Does were determined to be
unsustained.35 Even when constitutional rights were not implicated by
disclosure, those same circumstances have been deemed by our legislature and
Supreme Court to fall outside the ambit of the state interest in such disclosure.
Thus, here, where the Does’ constitutional rights would be impinged by
disclosure, the state interest cannot be said to be compelling, such that
disclosure would nevertheless be permitted.36
35 We note that, while some of the OPA’s findings were “not sustained” because the
allegations were determined to be “unfounded,” others were unsustained because the
investigation as to those findings was deemed to be “inconclusive.” However, an “inconclusive”
finding remains a finding that the allegations were unsustained; it neither constitutes a finding
against the officer nor authorizes disciplinary action. Accordingly, we treat the “inconclusive”
unsustained findings in the same manner as the “unfounded” unsustained findings.
36 Sueoka asserts that the trial court properly determined that the public has a legitimate
interest in disclosure of the Does’ identities in the requested records because OPA Director
Andrew Myerberg may have previously represented one of the Does in a civil rights case. This
purported conflict, Sueoka contends, may have undermined the investigation.
However, even when only a statutory privacy interest is implicated, Washington courts
have held that complete records need not be disclosed for the public interest of government
oversight to be achieved. See, e.g., Bainbridge Island Police Guild, 172 Wn.2d at 416 (“Although
lacking a legitimate interest in the name of a police officer who is the subject of an
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No. 83700-1-I/55
The United States Supreme Court has recognized that “[t]he public is, of
course, entitled to be informed concerning the workings of its government. That
cannot be inflated into a general power to expose where the predominant result
can only be an invasion of the private rights of individuals.” Watkins, 354 U.S. at
200 (footnote omitted). Here, disclosure of the Does’ identities would fulfill only
the “impermissible [objective] of exposure for exposure’s sake.” Uphaus, 360
U.S. at 82 (Brennan, J., dissenting).
Based on our legislature’s and Supreme Court’s delineation of the
purpose of the PRA’s disclosure mandate, we conclude that the State has no
compelling interest in disclosure of the Does’ identities in the requested records.
Accordingly, because the Does have established a constitutional privacy right
that would be impinged by disclosure, the superior court erred by denying the
Does’ motion for a preliminary injunction precluding such disclosure.37
unsubstantiated allegation of sexual misconduct, the public does have a legitimate interest in how
a police department responds to and investigates such an allegation against an officer.”);
Bellevue John Does, 164 Wn.2d at 220 (“Precluding disclosure of the identities of teachers who
are subjects of unsubstantiated allegations will not impede the public’s ability to oversee school
districts’ investigations of alleged teacher misconduct.”). Indeed, our Supreme Court has made
plain that a public employee’s “right to privacy does not depend on the quality of the [public
employer’s] investigations.” Bellevue John Does, 164 Wn.2d at 223. Here, given the
constitutional right at stake, we hold that the State has no compelling interest in disclosure of the
Does’ identities for this purpose.
Moreover, “[a]n agency should look to the contents of the document and not the
knowledge of third parties when deciding if the subject of a report has a right to privacy in their
identity.” Bainbridge Island Police Guild, 172 Wn.2d at 414. In Bainbridge Island Police Guild,
our Supreme Court held that notwithstanding the fact that some members of the public might
know the identity of the individual identified in the records, the agency must nevertheless refuse
to disclose those records if an exemption exists. 172 Wn.2d at 414. Otherwise, agencies would
be required to “engage in an analysis of not just the contents of the report” but also of outside
knowledge regarding the incident described therein. Bainbridge Island Police Guild, 172 Wn.2d
at 414. The same logic applies here. Additionally, the City, in evaluating a records request,
cannot be charged with presuming the need to disclose individuals’ identities in investigative
records on the chance of potential conflict of interest of the investigator that is not established in
the records themselves. Such a presumption would gut the disclosure exemptions of the PRA.
37 The Does sought a preliminary injunction precluding the disclosure of their identities in
the requested records. They did not seek to prevent disclosure of redacted versions of those
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No. 83700-1-I/56
(c)
We recognize that much of the United States Supreme Court’s
jurisprudence establishing a constitutional privacy right to anonymity in political
belief and association, which is grounded in the First Amendment to the United
States Constitution, predates the Court’s modern formulation of the strict scrutiny
standard applicable to governmental action impinging such rights. See Reed v.
Town of Gilbert, Ariz., 576 U.S. 155, 167, 135 S. Ct. 2218, 192 L. Ed. 2d 236
(2015) (recognizing that the Court’s decision in Button, 371 U.S. 415, “predated
[its] more recent formulations of strict scrutiny”).38 However, even applying these
“more recent formulations” of the standard, Town of Gilbert, 576 U.S. at 167, the
result herein remains unchanged.
records. Thus, we do not consider whether the redacted records are subject to disclosure
pursuant to the PRA. We do note, however, that once the Does’ identities and other identifying
information are redacted from the requested records, their constitutional rights are no longer
implicated. Accordingly, it is the PRA, not federal constitutional principles, that dictate whether
the redacted records may be disclosed. As no party seeks to preclude such disclosure, that issue
is not before us.
However, we note that, when a constitutional right would not thereby be infringed, the
State has an interest in permitting disclosure of public records to enable government oversight,
thus fulfilling the purpose of the PRA. See, e.g., Bainbridge Island Police Guild, 172 Wn.2d at
416 (“Although lacking a legitimate interest in the name of a police officer who is the subject of an
unsubstantiated allegation of sexual misconduct, the public does have a legitimate interest in how
a police department responds to and investigates such an allegation against an officer.”);
Bellevue John Does, 164 Wn.2d at 220 (“Precluding disclosure of the identities of teachers who
are subjects of unsubstantiated allegations will not impede the public’s ability to oversee school
districts’ investigations of alleged teacher misconduct.”). See also RCW 42.56.210 (requiring
disclosure of records when exempted information can be redacted therefrom).
“[E]ven though the governmental purpose be legitimate and substantial, that purpose
cannot be pursued by means that broadly stifle fundamental personal liberties when the end can
be more narrowly achieved.” Shelton, 364 U.S. at 488. Here, the purposes of the PRA are
achieved through disclosure of the redacted records.
38 The Court in Button held that a Virginia state law purporting to regulate the legal
profession unconstitutionally infringed on “the [First Amendment] right of the NAACP and its
members and lawyers to associate for the purpose of assisting persons who seek legal redress
for infringements of their constitutionally guaranteed and other rights.” 371 U.S. at 428. This
decision is among those cited by the Court for the proposition that “compelled disclosure, in itself,
can seriously infringe on privacy of association and belief guaranteed by the First Amendment.”
Buckley, 424 U.S. at 64 (citing Gibson, 372 U.S. 539; Button, 371 U.S. 415; Bates, 361 U.S. 516;
Shelton, 364 U.S. 479; NAACP, 357 U.S. 449).
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As demonstrated by the profusion of legislatively enacted exceptions to
our state’s public records law, there is no compelling government interest in
disclosure of the unredacted requested records. Rather, the constitutionally
mandated narrow tailoring here requires precisely the remedy sought by the
Does—the redaction of their names and personal identifying information from the
requested records prior to disclosure. Thus, we hold that, applying the United
States Supreme Court’s modern formulation of the strict scrutiny standard,
disclosure of the requested records in redacted form serves to protect the First
Amendment interests at stake while allowing for the attainment of the
government’s legitimate interest in disclosure.
The Supreme Court’s modern formulation of the strict scrutiny standard,
as pertinent here, is articulated in Citizens United v. Federal Election
Commission, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), in which
the Court pronounced:
Speech is an essential mechanism for democracy, for it is
the means to hold officials accountable to the people. The right of
citizens to inquire, to hear, to speak, and to use information to
reach consensus is a precondition to enlightened self-government
and a necessary means to protect it. . . .
For these reasons, political speech must prevail against laws
that would suppress it, whether by design or inadvertence. Laws
that burden political speech are “subject to strict scrutiny,” which
requires the Government to prove that the restriction “furthers a
compelling interest and is narrowly tailored to achieve that interest.”
Citizens United, 558 U.S. at 339-40 (citation omitted) (quoting Fed. Election
Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464, 127 S. Ct. 2652, 168
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No. 83700-1-I/58
L. Ed. 2d 329 (2007)).39 Thus, the Supreme Court’s more recent formulations of
the strict scrutiny standard require that government restrictions on protected
speech be “narrowly tailored” to achieving the government’s compelling interest,
a mandate that was not explicitly articulated in the Court’s previous jurisprudence
establishing a First Amendment privacy right in political belief and association.
See, e.g., Brown, 459 U.S. 87; Gibson, 372 U.S. 539; Bates, 361 U.S. 516;
Shelton, 364 U.S. 479; NAACP, 357 U.S. 449.
The Citizens United explication of the modern formulation is grounded in
the Court’s historical jurisprudence and finds its genesis in the Court’s statement
in McIntyre that “[w]hen a law burdens core political speech, we apply ‘exacting
scrutiny,’ and we uphold the restriction only if it is narrowly tailored to serve an
overriding state interest.” 514 U.S. at 347.
As discussed above, our Supreme Court’s decisional authority and the
policies animating the PRA lead to the inexorable conclusion that, here, the
government has no compelling interest in disclosure of the Does’ identities in the
requested records. Rather, the government’s interest in the disclosure of public
records is to uphold the PRA’s purpose of enabling the public to ensure “that its
public officials are honest and impartial in the conduct of their public offices.”
Cowles Publ’g Co., 109 Wn.2d at 719. Further evidencing the absence of a
39 We acknowledge that differing levels of scrutiny apply to various claims of infringement
on federal constitutional rights. See, e.g., Town of Gilbert, 576 U.S. at 172 (in the context of
federal free speech guarantees, distinguishing between those laws subject to strict scrutiny
analysis and those “subject to lesser scrutiny”); Progressive Democrats for Soc. Just., 588 F.
Supp. 3d at 975-76 (describing differing levels of scrutiny in the context of the First and
Fourteenth Amendments, including rational basis review and strict scrutiny). However, no party
credibly seeks to establish that other such constructs are applicable in this case. We take the
United States Supreme Court at its word in Citizens United, 558 U.S. at 340, that the strict
scrutiny standard applies in cases such as this.
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No. 83700-1-I/59
compelling state interest in total disclosure of all records, our legislature has
enacted a plethora of exceptions to the PRA’s disclosure mandate—in fact, as of
March 2022, there were 632 such legislatively enacted exceptions.40 Without
question, this proliferation of exceptions to the PRA’s disclosure mandate
renders implausible any argument that a compelling state interest in disclosure of
the Does’ identities exists here. Rather, the government’s interest in disclosure
of the requested records inheres only in making public a redacted version of
those records.
When applying the modern strict scrutiny standard, we must ensure that
the government’s application of the PRA—the state action at issue here—is
narrowly tailored to serve its legitimate interest in the disclosure of public records.
See Citizens United, 558 U.S. at 340. Such narrow tailoring compels us to
identify the “least restrictive alternative” that will achieve the pertinent state
interest. Ashcroft v. Am. Civ. Liberties Union, 542 U.S. 656, 666, 124 S. Ct.
2783, 159 L. Ed. 2d 690 (2004). “The purpose of [this] test is to ensure that
speech is restricted no further than necessary to achieve the [government’s]
goal, for it is important to ensure that legitimate speech is not chilled or
punished.” Ashcroft, 542 U.S. at 666.
Here, the very remedy sought by the Does—redaction of their names and
identifying information from the requested records—is precisely the narrow
40 See Appendix A (“Public Records Exemptions Accountability Committee – Sunshine
Committee,” Schedule of Review, updated March 2022). Original available at https://agportal-
s3bucket.s3.amazonaws.com/uploadedfiles/Schedule%20of%20Review%20Update%20March%
202022.pdf.
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No. 83700-1-I/60
tailoring that serves to protect the First Amendment rights at stake while
simultaneously allowing for the attainment of the government’s legitimate interest
in public records disclosure. Thus, applying the United States Supreme Court’s
more recent formulations of strict scrutiny, which require that governmental
action impinging on speech rights be narrowly tailored to serve a compelling
state interest, we reach the same conclusion as when applying the Court’s earlier
jurisprudence. In both circumstances, we conclude that disclosure of the
unredacted requested records would unconstitutionally impinge on the Does’
federal privacy rights—rights that are grounded in First Amendment guarantees.
The government’s sole legitimate interest in disclosure here is in making public a
redacted version of the requested records that excludes the Does’ names and
other identifying information.41
C
Sueoka and the City next assert that, even if the requested records are
exempt from disclosure, the Does are nevertheless entitled to a preliminary
injunction only if they can additionally demonstrate that they are likely to succeed
on the merits of meeting the statutory injunction standard set forth in the PRA.
We disagree.
When the disclosure of an individual’s identity in public records would
impinge a First Amendment right to privacy, the State may not place on that
individual an additional burden to vindicate that right. In such a circumstance,
41 An appropriate grant of such relief, as articulated by the Ninth Circuit Court of Appeals,
would preclude the disclosure of “‘all personally identifying information or information from which
a person’s identity could be derived with reasonable certainty.’” Does 1-10 v. Univ. of Wash., 798
F. App’x 1009, 1010 (9th Cir. 2020).
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No. 83700-1-I/61
the establishment of the right itself mandates the issuance of an injunction. This
is consistent with our Supreme Court’s jurisprudence establishing that, when a
statutory right precludes disclosure, the individual seeking to vindicate that right
must demonstrate not only that an exemption to disclosure applies, but also that
the PRA’s injunctive relief standard is satisfied. Mindful as we are that we must,
when possible, read statutes to avoid constitutional infirmity, we hold that the
PRA does not require that its statutory injunctive relief standard be met when a
First Amendment right to privacy precludes the disclosure of public records.
The PRA provides that “[t]he examination of any specific public record
may be enjoined if . . . the superior court . . . finds that such examination would
clearly not be in the public interest and would substantially and irreparably
damage any person, or would substantially and irreparably damage vital
governmental functions.” RCW 42.56.540. This two-part injunctive relief
provision “‘governs access to a remedy’ when records are found to fall within an
exemption” to the PRA’s disclosure mandate. Lyft, 190 Wn.2d at 789 (quoting
PAWS, 125 Wn.2d at 258). Thus, when a statutory exemption to disclosure is
asserted, the trial court may impose an injunction pursuant to RCW 42.56.540
only if the court finds that “a specific exemption applies and that disclosure would
not be in the public interest and would substantially and irreparably damage a
person or a vital government interest.” Soter, 162 Wn.2d at 757.
Our Supreme Court so held in Lyft, 190 Wn.2d 769, wherein the court
addressed whether the disclosure of certain public records could be enjoined
pursuant to a statutory exemption to the PRA’s disclosure mandate. There, the
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No. 83700-1-I/62
parties seeking to enjoin disclosure asserted that the records at issue contained
trade secrets protected by the federal Uniform Trade Secrets Act (UTSA),
chapter 19.108 RCW. Lyft, 190 Wn.2d at 773. Our Supreme Court determined
that portions of the public records likely met “the definition of ‘trade secrets’ under
the UTSA.” Lyft, 190 Wn.2d at 777, 780-84. The court nevertheless held that
disclosure of the records could be enjoined only if the PRA’s injunctive relief
standard, set forth in RCW 42.56.540, was also satisfied. Lyft, 190 Wn.2d at
773. Thus, our Supreme Court held that “finding an exemption applies under the
PRA does not ipso facto support issuing an injunction.” Lyft, 190 Wn.2d at 786.
It is on the basis of this decisional authority that Sueoka and the City
contend that, in order to obtain the relief that they seek, the Does must
demonstrate that they are likely to succeed on the merits of meeting the PRA’s
two-part statutory injunctive relief standard. However, because disclosure of the
Does’ identities in the requested records would impinge their First Amendment
right to privacy, the argument advanced by Sueoka and the City is untenable.
Requiring that parties seeking to vindicate such rights establish not only the First
Amendment right itself, but also the requirements of the PRA’s injunctive relief
standard, would run afoul of the Supremacy Clause of our federal constitution,
which mandates that courts “‘shall’ regard the ‘Constitution,’ and all laws ‘made in
Pursuance thereof,’ as ‘the supreme Law of the Land.’” Armstrong v. Exceptional
Child Ctr., Inc., 575 U.S. 320, 324, 135 S. Ct. 1378, 191 L. Ed. 2d 471 (2015)
(quoting U.S. CONST. art. VI, cl. 2).42 We cannot interpret the PRA in a manner
42 The Supremacy Clause provides:
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No. 83700-1-I/63
that would render it unconstitutional. Utter ex rel. State v. Bldg. Indus. Ass’n of
Wash., 182 Wn.2d 398, 434, 341 P.3d 953 (2015) (“We construe statutes to
avoid constitutional doubt.”). Nor does this resolution of the issue do so.
Rather, we read the PRA as consistent with the federal constitution simply
by recognizing the distinction between a legislatively created statutory right and a
federal constitutional right. When the state legislature creates a right, such as a
statutory exemption from the PRA’s disclosure mandate, the legislature may
impose conditions on the exercise of that right. This is precisely what the
legislature has done in enacting the PRA’s injunctive relief standard, RCW
42.56.540. Thus, as our Supreme Court has held, when a statutory right is
implicated, a finding that an exemption applies “does not ipso facto support
issuing an injunction.” Lyft, 190 Wn.2d at 786. Rather, the two-part standard set
forth in RCW 42.56.540 must also be satisfied, as the legislature has imposed
this statutory condition on the exercise of the statutory right against disclosure.
However, here, the Does’ claim of right does not depend upon a statutory
exemption, and the disclosure of the unredacted records would not merely
impinge a statutory right. Rather, the Does’ First Amendment right to privacy in
their political beliefs and associations would be impinged. The significance of
this distinction is readily apparent. Our state legislature can impose a condition
on the exercise of a right created by the legislature itself. However, the
This Constitution, and the laws of the United States which shall be made
in pursuance thereof; and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the
judges in every state shall be bound thereby, any thing in the Constitution or laws
of any state to the contrary notwithstanding.
U.S. CONST. art. VI, cl. 2.
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legislature, having created neither the First nor Fourteenth Amendments, cannot
condition the exercise of this federal constitutional right on whether the Does can
satisfy the statutory injunctive relief standard. Put simply, such a requirement
would authorize a state or local government to violate citizens’ constitutional
rights when they establish the impingement of such rights but are unable to also
demonstrate satisfaction of an additional statutory requirement to obtain
injunctive relief.43 The PRA injunction standard cannot serve as a bar to the
City’s obligation under the Fourteenth Amendment to safeguard the First
Amendment rights of Washington citizens in its application of state law. See,
e.g., Seattle Times Co., 170 Wn.2d 581 (discussed infra at 9-10).
Again, this analysis does not suggest a constitutional infirmity of the PRA.
Rather, recognizing the distinction between legislatively created statutory rights
and the First Amendment constitutional right implicated here, we note that the
43 This very absurdity appears to be consistent with the City’s understanding of its duty to
Washington’s citizens. In supplemental briefing, the City asserts that it has no “freestanding
obligation to honor” the constitutional rights of our state’s citizens. Specifically, the City contends
that the third party notice provision set forth in the PRA is the proper means for it to address
exceptions to disclosure premised on a constitutional right. The City argues, in other words, that
it has no obligation to independently honor the constitutional rights of third parties in response to
records requests. We do not so hold.
When, after receiving notice, an individual seeks injunctive relief premised on a
constitutional right, and thereafter establishes both that the right would be impinged by disclosure
and that no sufficient interest of the state permits disclosure, the City plainly has an obligation
under the Fourteenth Amendment not to violate the individual’s constitutional right,
notwithstanding the PRA’s injunction standard. In other words, here, once the constitutional right
is established, the City does not have unfettered discretion to either refuse to disclose the
records, pursuant to the PRA, or to permit disclosure premised upon the RCW 42.56.540’s
standard not being met. Such unfettered discretion of government actors to either honor citizens’
constitutional rights or refuse to honor such rights is anathema to the constitutional rule of law.
The City need not serve as the lawyer for every individual mentioned in requested public
records. However, when the constitutional right implicated by disclosure of particular requested
records is clear, the City must refuse to disclose the records (or the relevant portions thereof).
The City must then defend against any challenge to the action by the records requestor, unless,
following notice, the individual whose rights are implicated does not object to disclosure. The
City’s supreme obligation is to the federal constitution, not to the state statute. See U.S. CONST.
art. VI, cl.2.
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No. 83700-1-I/65
application of RCW 42.56.540 would necessarily mandate the issuance of an
injunction. Given the State’s paramount interest in affirming the federal
constitutional rights of its citizens, disclosure that would impinge the Does’ First
Amendment right to privacy “would clearly not be in the public interest.” RCW
42.56.540. Moreover, because the Does’ constitutional rights would be impinged
by disclosure of the unredacted records, such disclosure would of necessity
“substantially and irreparably damage” the Does. RCW 42.56.540.
Thus, when disclosure is precluded by a First Amendment right to privacy,
rather than a statutory exemption, the establishment of that constitutional right
does, indeed, ipso facto mandate the issuance of an injunction. The State has
no lawful authority to impose an additional requirement on parties seeking to
vindicate their constitutional rights in order to trigger its obligations pursuant to
the Fourteenth Amendment. Because disclosure of the unredacted records
would impinge their First Amendment rights, the Does cannot be required to
additionally demonstrate satisfaction of an injunctive relief standard in order to
obtain the relief they seek, unless that standard is one that is ipso facto satisfied
by virtue of the establishment of the First Amendment right. Because the PRA
standard is one such standard, the Does have met their burden.44
IV
In his cross appeal, Sueoka contends that the trial court erred by denying
his motion to “change the case title and bar the use of pseudonyms” in this
44 We acknowledge the existence of case law, primarily from lower federal courts, that
occasionally applies non-PRA injunctive relief standards. Our Supreme Court has determined
that PRA disclosure is regulated by only the PRA injunctive relief standard. Lyft, 190 Wn.2d at
784-85.
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litigation. According to Sueoka, Washington’s open courts principles, emanating
from article I, section 10 of our state constitution, require that the Does litigate
this matter using their actual names. We disagree.
In seeking to preclude the disclosure of their identities in the requested
records, the Does assert a First Amendment right. Thus, it is federal open courts
jurisprudence, which itself derives from the First Amendment, that here applies.
Such jurisprudence permits litigants to proceed pseudonymously when the injury
litigated against would be incurred as a result of the disclosure of their identities.
Herein, that precise outcome would occur were the Does not permitted to litigate
using pseudonyms.
Accordingly, we conclude that the trial court did not err in ruling that the
Does could proceed in pseudonym in this litigation. For the same reason, we
decline to grant Sueoka’
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