Does 1, 2, 4, 5, Appellants/cross-respondents V. Sam Sueoka, Respondents/cross-appellants

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No. 83700-1-I/33

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.

33

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).

34

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

35

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

36

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

37

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

38

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.

39

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

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’

41

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.

42

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.

43

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.

44

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.”).

45

No. 83700-1-I/46

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.

46

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.

47

No. 83700-1-I/48

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.

48

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.

49

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

50

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.

51

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

52

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

53

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

54

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

55

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).

56

No. 83700-1-I/57

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

57

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.

58

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.

59

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).

60

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

61

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:

62

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.

63

No. 83700-1-I/64

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.

64

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.

65

No. 83700-1-I/66

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’s request to preclude the use of pseudonyms on appeal.

A

In these proceedings, both the trial court and our commissioner have

repeatedly entertained Sueoka’s argument that the Does should not be permitted

to litigate pseudonymously. In each instance, they have rejected that argument.

First, Sueoka objected to the Does’ motion to proceed in pseudonym filed

concurrent with their initial complaint for declaratory and injunctive relief. On

March 9, 2021, Judge Cahan granted the Does’ motion. Prior to so doing, Judge

Cahan considered the factors for redaction set forth in Seattle Times Co. v.

Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982), and made the findings required

therein. Judge Cahan also determined that the Does had complied with the

66

No. 83700-1-I/67

relevant court rules, including General Rule (GR) 15. Three days later, on March

12, 2021, Judge Widlan denied the Does’ complaint for injunctive relief, and the

Does sought discretionary review.

Sueoka then filed a “motion to change the case title and bar the use of

pseudonyms” in this court. He subsequently filed a notice of cross appeal,

challenging Judge Cahan’s order permitting the Does to litigate in pseudonym.

Our commissioner denied Sueoka’s motion to change the case title on April 9,

2021. The commissioner explained that there “appear[ed] to be no dispute that

Judge Cahan evaluated the Ishikawa factors in reaching the March 9, 2021

decision and that no party asked Judge Widlan to revisit [that] order.” The

commissioner further reasoned that the “substance of Sueoka’s motion to

change the case title is inextricably tangled up with the merits of his appeal” and

concluded that “maintaining the case name adopted by the trial court . . . appears

to be necessary to allowing [this court] to reach the merits of this case.”

Following transfer of the appeal from Division One to our Supreme Court,

and that court’s subsequent dismissal of review and remand to the superior

court, Sueoka again filed a “motion to change the case title and bar the use of

pseudonyms.” Sueoka did not therein challenge Judge Cahan’s order granting

the Does’ motion to proceed in pseudonym. Judge Widlan denied Sueoka’s

motion, reasoning that “the purpose of [the Does’] lawsuit is to procure an

injunction to prevent disclosure of their names” and, thus, requiring use of their

names in court filings “would effectively prevent them from seeking any relief.”

67

No. 83700-1-I/68

B

Washington’s open courts jurisprudence derives from article I, section 10

of our state constitution, which requires that “[j]ustice in all cases shall be

administered openly, and without unnecessary delay.” W ASH. CONST. art. I, § 10.

Because “[t]he openness of our courts ‘is of utmost public importance,’”

Washington courts begin “with the presumption of openness when determining

whether a court record may be sealed from the public.” Hundtofte v.

Encarnacion, 181 Wn.2d 1, 7, 330 P.3d 168 (2014) (quoting Dreiling v. Jain, 151

Wn.2d 900, 903, 93 P.3d 861 (2004)). Whether redaction implicates article I,

section 10’s mandate of open access to courts and court documents “depends

on application of the experience and logic test.” State v. S.J.C., 183 Wn.2d 408,

412, 352 P.3d 749 (2015). When article I, section 10 applies, redaction is

permitted only after consideration of the factors set forth in Ishikawa, 97 Wn.2d

30. When our state constitution is not implicated, GR 15 permits the redaction of

names in pleadings if the court “enters written findings that the specific sealing or

redaction is justified by identified compelling privacy or safety concerns that

outweigh the public interest in access to the court record.” GR 15(c)(2).

In a recent opinion, our Supreme Court reversed a decision of this court

wherein we had determined that allowing the plaintiffs to litigate using

pseudonyms did not implicate article I, section 10. John Doe G v. Dep’t of

Corr.,190 Wn.2d 185, 191, 410 P.3d 1156 (2018) (citing John Doe G v. Dep’t of

Corr., 197 Wn. App. 609, 627-28, 391 P.3d 496 (2017)). The Supreme Court

therein addressed a privacy right arising from a state statute. The questions

68

No. 83700-1-I/69

presented were (1) whether special sex offender sentencing alternative

evaluations are exempt from disclosure pursuant to statutory exemptions, and (2)

whether “pseudonymous litigation was proper in [that] action.” Doe G, 190

Wn.2d at 189.

On appeal before this court, we had looked to federal open courts

jurisprudence for “guidance,” recognizing the “parallel rights [to those derived

from article I, section 10] under the First Amendment.” Doe G, 197 Wn. App. at

627. We noted federal court holdings that the use of pseudonyms is appropriate

when “‘the injury litigated against would be incurred as a result of the disclosure

of the plaintiff’s identity.’” Doe G, 197 Wn. App. at 627 (quoting Doe v. Frank,

951 F.2d 320, 324 (11th Cir. 1992)). Based, in part, on this reasoning, we held

that “[e]xperience and logic” demonstrated “that allowing [the] plaintiffs to

proceed under pseudonyms [did] not implicate article I, section 10 where the

public’s interest in the plaintiffs’ names is minimal and use of those names would

chill their ability to seek relief.” Doe G, 197 Wn. App. at 628. Thus, we affirmed

the trial court’s ruling permitting the plaintiffs to litigate using pseudonyms,

notwithstanding that the trial court had not applied the Ishikawa factors. Doe G,

197 Wn. App. at 624.

Our Supreme Court reversed our decision, holding that “pseudonymous

litigation was improper . . . because the trial court did not adhere to the

requirements of article I, section 10 . . . and [GR] 15.” Doe G, 190 Wn.2d at 189.

In so holding, the court explained that it had “never used [the] analysis” set forth

in the federal appellate court decisions on which we had relied for guidance. Doe

69

No. 83700-1-I/70

G, 190 Wn.2d at 198. Instead, the court held, Washington courts “rely on GR 15

and Ishikawa.” Doe G, 190 Wn.2d at 198.

C

Citing our Supreme Court’s decision in Doe G, 190 Wn.2d 185, Sueoka

contends that Judge Widlan “used the wrong legal standard” in denying his

motion to preclude the Does from litigating pseudonymously.45 However, in so

asserting, Sueoka misperceives the issue as one of Washington law. 46 It is not.

Accordingly, his argument fails.

Unlike in Doe G, in this case, the Does assert that disclosure of their

identities would impinge a federal constitutional First Amendment right.

Preventing the Does from proceeding in pseudonym would preclude their ability

to obtain the relief that they seek in this action. In other words, requiring the

Does to use their actual names in the case caption would undermine their ability

to assert the First Amendment right that they seek to vindicate herein. Such a

result would violate the Supremacy Clause, U.S. CONST. art. VI, cl. 2, which

mandates that we must not “give effect to state laws that conflict with federal

laws.” Armstrong, 575 U.S. at 324. When parties who assert that disclosure of

their identities would violate a federal constitutional right seek to litigate

45 Br. of Resp’t/Cross Appellant at 69-71.

46 We note that, if Washington law did apply here, Sueoka’s contention would

nevertheless be unavailing. As discussed above, Judge Cahan did apply GR 15 and the

Ishikawa factors in ruling that the Does could proceed in pseudonym. Sueoka does not challenge

Judge Cahan’s findings, which are, therefore, verities on appeal. In re Welfare of A.W., 182

Wn.2d 689, 711, 344 P.3d 1186 (2015); see also Doe AA v. King County, 15 Wn. App. 2d 710,

717, 476 P.3d 1055 (2020) (accepting as true the trial court’s Ishikawa findings that were

unchallenged on appeal). Following Sueoka’s subsequent motion seeking, once again, to

preclude the Does from litigating in pseudonym, Judge Widlan simply declined to revisit Judge

Cahan’s earlier ruling.

70

No. 83700-1-I/71

pseudonymously, it is federal open courts jurisprudence, arising from the First

Amendment itself, that we must apply.

This holding is consistent with our Supreme Court’s decision in Doe G,

190 Wn.2d 185. There, the litigants seeking to use pseudonyms asserted that

disclosure of their identities in the requested records was precluded by statutory

rights arising from statutory exemptions, including an exemption enumerated

within the PRA itself. Doe G, 190 Wn.2d at 189. Thus, our Supreme Court

properly held that Washington’s open courts jurisprudence applied and that we

had erred by importing federal case law into Washington law. Doe G, 190 Wn.2d

at 189, 198.

Here, however, the Supremacy Clause requires that First Amendment

jurisprudence be applied, both as to the constitutional right at issue—whether

disclosure of the Does’ identities in the requested records would violate a

constitutional privacy right—and as to the question of whether the Does may use

pseudonyms in seeking to vindicate that right. Accordingly, because the Does

assert an exemption from disclosure premised on a federal constitutional right,

rather than a statutory exemption, the application of federal open courts

jurisprudence does not conflict with our Supreme Court’s decision in Doe G but

does comport with the requirements of the Supremacy Clause.

Federal courts have made clear that “[p]ublic access [to plaintiffs’ names

in a lawsuit] is more than a customary procedural formality; First Amendment

guarantees are implicated when a court decides to restrict public scrutiny of

judicial proceedings.” Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981); see also

71

No. 83700-1-I/72

Roe II v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 688 (11th Cir. 2001)

(Hill, J., concurrence in part). When federal law applies, “[t]he ultimate test for

permitting a plaintiff to proceed anonymously is whether the plaintiff has a

substantial privacy right which outweighs the ‘customary and constitutionally-

embedded presumption of openness in judicial proceedings.’” Frank, 951 F.2d at

323 (quoting Stegall, 653 F.2d at 186). “A plaintiff should be permitted to

proceed anonymously only in those exceptional cases involving matters of a

highly sensitive and personal nature, real danger of physical harm, or where the

injury litigated against would be incurred as a result of the disclosure of the

plaintiff’s identity.” Frank, 951 F.2d at 324 (emphasis added).

Thus, the First Amendment both confers privacy rights in political speech

and also, in the standard regulating when a party can proceed in pseudonym,

provides that these substantive rights cannot be extinguished merely because a

party seeks to vindicate them. In other words, it provides that concerns about

public access to the courts cannot be applied to the detriment of First

Amendment rights under federal law, such that the vindication of constitutional

rights would be improperly conditioned on disclosure.47 In this action, the “injury

47 In NAACP, 357 U.S. at 459-60, the United States Supreme Court relied on this

principle—that federal law not be applied in a manner that precludes the vindication of individuals’

constitutional rights to privacy—in holding that the plaintiff organization had standing to assert the

rights of its members. The Court held that the general principle that parties must assert only

those constitutional rights “which are personal to themselves” is “not disrespected where

constitutional rights of persons who are not immediately before the Court could not be effectively

vindicated except through an appropriate representative before the Court.” NAACP, 357 U.S. at

459.

There, the NAACP challenged a court order mandating disclosure of its membership lists

to the Alabama Attorney General, asserting that such disclosure would violate its members’

constitutional privacy rights. NAACP, 357 U.S. at 451, 458. The Court held that the “right [was]

properly assertable by the [NAACP],” reasoning that “[t]o require that [the constitutional right] be

claimed by the [NAACP’s] members themselves would result in nullification of the right at the very

moment of its assertion.” NAACP, 357 U.S. at 459. See also Pollard, 283 F. Supp. at 256

72

No. 83700-1-I/73

litigated against” is disclosure of the Does’ identities in the requested records.

Were the Does not permitted to litigate pseudonymously, the very injury they

seek to litigate against would be incurred. Pursuant to federal open courts

jurisprudence, in this circumstance, “the almost universal practice of disclosure

must give way . . . to the privacy interests at stake.” Stegall, 653 F.2d at 186.

In summary, the Supremacy Clause prohibits the application of state open

courts jurisprudence to a pending First Amendment claim when such application

would cause the injury litigated against to be incurred, as federal open courts

principles, arising as they do from the First Amendment itself, would not mandate

the disclosure of the parties’ names in that circumstance. If the Does ultimately

prevail, they would be entitled to full protection of their First Amendment rights

against the government—here, protection against disclosure of their identities

within the requested records. State constitutional open courts provisions cannot

be applied in contravention of First Amendment jurisprudence in a manner that

frustrates protection of the citizen’s federal constitutional rights.

Accordingly, we hold that the Does must be permitted to use pseudonyms

in this action. The trial court did not err by so ruling. We additionally deny

Sueoka’s request that we change the case title in this appeal to require it to

include the Does’ actual names.

(recognizing “recent Supreme Court decisions establish[ing] that an organization made up of

private individuals has standing to protect those individuals from unwarranted invasions of

government of their rights of association and privacy guaranteed by the First and Fourteenth

Amendments”).

Similarly, here, the Does would be precluded from vindicating their constitutional rights

were they unable to litigate pseudonymously. First Amendment open courts jurisprudence

prohibits disclosure in such circumstances. Frank, 951 F.2d at 324.

73

No. 83700-1-I/74

D

The Does seek herein to vindicate rights enshrined in the federal

constitution. Thus, applying the open courts principles arising from article I,

section 10 of our state constitution to determine whether the Does may be

permitted to litigate in pseudonym would contravene the Supremacy Clause’s

mandate of state law supersession. Accordingly, as discussed above, we must

apply federal law to this question. We nevertheless note that application of

Washington open courts law would dictate the same resolution of this issue.

Again, this is due to the Supremacy Clause’s mandate that we not give

effect to state laws that conflict with federal laws. Precluding the Does from

litigating in pseudonym pursuant to article I, section 10 would itself be a state

action that would compel the disclosure of the Does’ individual political beliefs

and associations. Indeed, application by Washington courts of our state

constitution is itself a state action. Thus, only by demonstrating that the

disclosure of the Does’ identities “‘furthers a compelling interest and is narrowly

tailored to achieve that interest,’” Citizens United, 558 U.S. at 340 (quoting Fed.

Election Comm’n, 551 U.S. at 464), could a Washington court require such

disclosure when a party seeking to litigate in pseudonym asserts a federal First

Amendment claim. Washington courts, too, are subject to the Supremacy

Clause’s mandate.

Here, as we have discussed, there is no compelling state interest in the

disclosure of the Does’ identities in the requested records. Similarly, there is no

compelling state interest in requiring that the Does litigate using their actual

74

No. 83700-1-I/75

names. Given the profusion of exceptions to the disclosure mandate, this

conclusion is inescapable. Our state law currently includes 632 legislatively

created exceptions to the PRA’s disclosure mandate. See Appendix A. This

proliferation of exceptions undoubtedly demonstrates the absence of a

compelling state interest in the disclosure of the Does’ identities here.

Moreover, neither our legislature nor our Supreme Court, in permitting

broad categories of persons to retain their anonymity in court records, has

engaged in the particularized analysis that would be required if the disclosure of

those persons’ identities implicated a compelling state interest. For instance, our

legislature has determined that individuals are automatically entitled to anonymity

in certain court records, including records regarding adoptions, RCW 26.33.330;

confidential name changes, RCW 4.24.130(5); child victims of sexual assault,

RCW 10.52.100; juvenile nonoffender records, such as juvenile dependencies,

parental terminations, and truancy, at risk youth, and child in need of services

cases, RCW 13.50.100; juvenile offender records, RCW 13.50.050; mental

illness commitments, RCW 71.05.620; and mental illness commitments of

minors, RCW 71.34.335.

Similarly, by both court rule and order, Washington courts have deemed

certain categories of persons to be exempt from the general mandate that court

records include the actual names of the litigants. Washington court rule General

Rule 15, consistent with article I, section 10 of our state constitution, “preserves a

long-established principle that the complete names of parties are to be listed with

the actions to which they are parties,” subject to “carefully delimited” exceptions.

75

No. 83700-1-I/76

Hundtofte, 181 Wn.2d at 16 (Madsen, C.J., concurring). These exceptions,

however, are not based on a particularized analysis of each case. Rather, like

the legislative enactments discussed above, they exempt litigants in broad

categories of cases from the disclosure mandate. For instance, in adopting Rule

of Appellate Procedure (RAP) 3.4, our Supreme Court has determined that all

juvenile offenders are entitled to anonymity in court records.48 By order, the

Washington Court of Appeals has similarly required that case titles in certain

appeals—including those regarding adoption, civil commitment, dependency,

termination of parental rights, truancy, at risk youth, child in need of services, and

juvenile offender—use the parties’ initials rather than their full names. Gen. Ord.

for the Ct. of Appeals, In re Changes to Case Title (Wash. Ct. App. Aug. 22,

2018) (effective Sept. 1, 2018).

Thus, neither our state legislature nor Washington courts, in adopting

exceptions to our state open courts law, have deemed it necessary to conduct a

particularized case-by-case analysis prior to permitting the redaction of parties’

names in court records. Instead, whether by legislative enactment, court rule, or

court order, our state has exempted broad categories of persons from the

general disclosure requirement. Certainly, such broad exemptions do not

indicate the narrow tailoring that would be necessary were the state interest in

the disclosure of litigants’ actual names compelling. Thus, by exempting broad

48 RAP 3.4 provides:

In a juvenile offender case, the parties shall caption the case using the juvenile’s

initials. The parties shall refer to the juvenile by his or her initials throughout all

briefing and pleadings filed in the appellate court, and shall refer to any related

individuals in such a way as to not disclose the juvenile’s identity. However, the

trial court record need not be redacted to eliminate references to the juvenile’s

identity.

76

No. 83700-1-I/77

swaths of persons from article I, section 10’s open courts mandate, both the

Washington legislature and Washington courts have impliedly indicated that the

state interest in disclosure of litigants’ actual names is not a compelling one.

The Supremacy Clause prohibits the application of state open courts

jurisprudence when, as here, the right asserted is established by the federal First

Amendment. Nevertheless, even were we to apply Washington law to the

question of whether the Does may litigate in pseudonym, we would reach the

same conclusion—that not only “may” they so litigate, but that the federal

constitution demands they be permitted to do so. Such a determination by a

Washington court is, itself, state action. The broad exemptions to the open

courts mandate, both enacted by our legislature and adopted by our courts,

demonstrate that the state interest in the disclosure of individuals’ actual names

in court records is not a compelling one. Absent such an interest, and given the

Does’ First Amendment right to anonymity in political belief and association, we

cannot require the Does to litigate using their actual names here.

V

A

All members of the panel have taken an oath to “‘support the Constitution

of the United States.’” RCW 2.06.085. Each panel member views the methods

of analyses employed herein and the decisions reached as being in accord with

this oath.

Nevertheless, we are aware of the cultural and political tenor of our times.

This includes an awareness that many Americans despair that judicial decisions

77

No. 83700-1-I/78

have become result-oriented to achieve political ends. To disabuse those so

inclined from defaulting to such a judgment concerning this opinion, and to

assure the general public that its appellate court exists in a reality-based

environment, we choose to acknowledge several of the pertinent facts that

underlie the dispute at issue.

1

The 2020 Presidential Election

1. Joseph R. Biden, Jr. won the 2020 presidential election, receiving

81,283,501 popular votes.49 Donald J. Trump lost the 2020 presidential election,

receiving 74,223,975 popular votes.50 Biden received 7,059,526 more votes than

did Trump.

2. Biden’s popular vote total was the largest ever received by a candidate

for President of the United States.51

3. Biden received 51.3 percent of the popular vote.52 This was the

highest percentage of the popular vote attained by a challenger to a sitting

president since 1932, when Franklin Roosevelt defeated Herbert Hoover.53

49 U.S. FED. ELECTION COMM’N, FEDERAL ELECTIONS 2020: ELECTION RESULTS FOR THE U.S.

PRESIDENT, THE U.S. SENATE, AND THE U.S. HOUSE OF REPRESENTATIVES 5 (Oct. 2022), at 5,

https://www.fec.gov/resources/cms-

content/documents/federalelections2020.pdf [https://perma.cc/5XDB-2XJA]

50 FEDERAL ELECTIONS 2020, supra, at 5.

51 Domenico Montanaro, President-Elect Joe Biden Hits 80 Million Votes in Year Of

Record Turnout, NAT’L PUB. RADIO (Nov. 25, 2020),

https://www.npr.org/2020/11/25/937248659/president-elect-biden-hits-80-million-votes-in-year-of-

record-turnout [https://perma.cc/4FZS-AWKK].

52 FEDERAL ELECTIONS 2020, supra, at 5.

53 Presidential Election Margin of Victory, AM. PRESIDENCY PROJECT (Mar. 7, 2020),

https://www.presidency.ucsb.edu/statistics/data/presidential-election-mandates

[https://perma.cc/9MJG-RAHE]; Share of Electoral College and Popular Votes from Each Winning

Candidate, in All United States Presidential Elections from 1789 to 2020, STATISTA (Dec. 2020),

https://www.statista.com/statistics/1034688/share-electoral-popular-votes-each-president-since-

1789 [https://perma.cc/B5SE-NLLY].

78

No. 83700-1-I/79

4. Biden earned 306 electoral votes. Trump earned 232.54 In 2016,

Trump earned 306 electoral votes, while Hillary Clinton earned 232.55 Thus,

Biden defeated Trump by the same Electoral College margin as Trump defeated

Clinton.

2

This text is long and has been trimmed here. Open the source document for the complete record.