Opinion
No. 83700-1-I
06-26-2023
John DOEs 1, 2, 4, 5, Appellants/Cross Respondents, Jane Doe 1 and John Doe 3, 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.
Ghazal Sharifi, Jessica Lynn Zornes Leiser, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, for Respondent. Blair Russ, Aric Sana Bomsztyk, Tomlinson Bomsztyk Russ, 1000 2nd Ave. Ste. 3660 Seattle, WA, 98104-1079, for Appellant/Cross-Respondent. Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave Ste. 330, Seattle, WA, 98121-3573, Janet L Thoman, Law Office of Janet L. Thoman, P.O. Box 80, Maple Valley, WA, 98038-0080, for Respondent/Cross-Appellant.
Ghazal Sharifi, Jessica Lynn Zornes Leiser, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, for Respondent.
Blair Russ, Aric Sana Bomsztyk, Tomlinson Bomsztyk Russ, 1000 2nd Ave. Ste. 3660 Seattle, WA, 98104-1079, for Appellant/Cross-Respondent.
Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave Ste. 330, Seattle, WA, 98121-3573, Janet L Thoman, Law Office of Janet L. Thoman, P.O. Box 80, Maple Valley, WA, 98038-0080, for Respondent/Cross-Appellant.
PUBLISHED OPINION
Dwyer, J.
¶1 "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, 87 S.Ct. 616. Police officers "are not relegated to a watered-down version of [such] rights." Garrity, 385 U.S. at 500, 87 S.Ct. 616.
¶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
¶3 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 Act (PRA). See Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.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.
Ch. 42.56 RCW.
¶4 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 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.
¶5 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.
¶6 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.
¶7 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 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
¶8 The Does are current or former SPD officers 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.
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.
¶9 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 standing orders to do so, they answered these questions "truthfully and as completely as possible."
¶10 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. ¶11 On February 23, 2021, the Does filed a complaint for declaratory relief and preliminary and permanent injunction in the trial court. 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.
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.
¶12 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."
¶13 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 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."
¶14 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.
¶15 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.
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.
¶16 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." The trial court also denied Sueoka's motion to preclude the Does from proceeding in pseudonym.
¶17 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
¶18 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.
¶19 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’ request for a preliminary injunction precluding disclosure of their names and other identifying information in the requested records.
A
1
¶20 The party seeking an injunction pursuant to the PRA has the burden of proof. Lyft, Inc. v. City of Seattle, 190 Wash.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 Wash. 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 Wash. App. 377, 392-93, 377 P.3d 214 (2016).
¶21 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 Wash.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 Wash.2d 484, 493, 450 P.3d 601 (2019).
2
¶22 "The PRA 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 v. Spokane Sch. Dist. No. 81, 182 Wash.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 Wash.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).
¶23 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 Wash. App. 2d 392, 511 P.3d 119 (2022), review granted, 200 Wash.2d 1012, 519 P.3d 585 (2022) ; see also White v. Clark County, 188 Wash. 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 Wash.2d 775, 808, 246 P.3d 768 (2011) (addressing the argument that provisions of the United States Constitution qualify as "other statutes").
¶24 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 Wash.2d 581, 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 Wash.2d at 595, 243 P.3d 919. 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 Wash.2d 686, 695, 310 P.3d 1252 (2013).
¶25 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 Wash.2d at 786, 418 P.3d 102. 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 Wash.2d 747, 756-57, 213 P.3d 596 (2009) ; see also Soter v. Cowles Publ'g Co., 162 Wash.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 and would substantially and irreparably damage a person or a vital government interest.").
3
¶26 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.
¶27 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, 77 S.Ct. 1203. Indeed, "[i]n the political realm ... thought and action are presumptively immune from inquisition by political authority." Sweezy, 354 U.S. at 266, 77 S.Ct. 1203. 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.
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))).
¶28 Indeed, the Court has "repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by 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, 78 S.Ct. 1163 ; 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, 83 S.Ct. 889 (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, 77 S.Ct. 1203 ("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.").
¶29 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, 77 S.Ct. 1203, 1 L.Ed.2d 1311 ; 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, 77 S.Ct. 1173, 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, 77 S.Ct. 1173. In considering this "collision of the investigatory function with constitutionally protected rights of speech and assembly," Uphaus, 360 U.S. at 83, 79 S.Ct. 1040 (Brennan, J., dissenting), the Court recognized the state interest in "self-preservation, ‘the ultimate value of any society.’ " Uphaus, 360 U.S. at 80, 79 S.Ct. 1040 (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.
Watkins, 354 U.S. at 200, 77 S.Ct. 1173 (footnote omitted); see also Uphaus, 360 U.S. at 82, 79 S.Ct. 1040 (Brennan, J., dissenting) (recognizing the "investigatory objective" therein to be "the impermissible one of exposure for exposure's sake").
¶30 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, 77 S.Ct. 1173 ; see also Uphaus, 360 U.S. at 84, 79 S.Ct. 1040 (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.").
¶31 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, 77 S.Ct. 1173. 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 activity by private persons [could not] relieve the investigators of their responsibility for initiating the reaction." Watkins, 354 U.S. at 198, 77 S.Ct. 1173.
¶32 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, 78 S.Ct. 1163, 2 L.Ed.2d 1488 ; Bates, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 ; Shelton, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 ; Gibson, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929. 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, 78 S.Ct. 1163. "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, 78 S.Ct. 1163. 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, 78 S.Ct. 1163. Indeed, "[t]he governmental action challenged may appear to be totally unrelated to protected liberties." NAACP, 357 U.S. at 461, 78 S.Ct. 1163. 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, 78 S.Ct. 1163 (quoting Sweezy, 354 U.S. at 265, 77 S.Ct. 1203 ); see also Bates, 361 U.S. at 524, 80 S.Ct. 412 ("Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling."). The Court concluded that it discerned no such state interest. NAACP, 357 U.S. at 464, 78 S.Ct. 1163.
¶33 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, 80 S.Ct. 412, 4 L.Ed.2d 480. 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, 80 S.Ct. 412. 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, 80 S.Ct. 412. In concurrence, Justices Black and Douglas recognized that mere exposure by the government can impinge these constitutional protections. Bates, 361 U.S. at 528, 80 S.Ct. 412 (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, 80 S.Ct. 412 (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, 80 S.Ct. 412.
¶34 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 previous five years. Shelton, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231. 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, 81 S.Ct. 247. 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, 81 S.Ct. 247. 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, 81 S.Ct. 247.
¶35 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, 81 S.Ct. 247. 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, 81 S.Ct. 247.
¶36 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. 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, 81 S.Ct. 247 (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, 81 S.Ct. 247 (Harlan, J., dissenting).
See Shelton, 364 U.S. at 496, 81 S.Ct. 247 (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, 81 S.Ct. 247 (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").
¶37 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. at 543, 83 S.Ct. 889. There, a Florida legislative committee sought to subpoena NAACP membership lists, presumably to investigate suspected communist involvement. Gibson, 372 U.S. at 540-41, 83 S.Ct. 889. 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, 83 S.Ct. 889. 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, 83 S.Ct. 889. 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, 83 S.Ct. 889.
¶38 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, 103 S.Ct. 416. "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, 103 S.Ct. 416 (quoting Buckley, 424 U.S. at 64, 96 S.Ct. 612 ). Again, the Court held that only by demonstrating a compelling interest can the State lawfully impinge such rights:
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, 78 S.Ct. 1163 ] (quoting Sweezy [, 354 U.S. at 265, 77 S.Ct. 1203 ]) (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, 83 S.Ct. 889 ].
Brown, 459 U.S. at 91-92, 103 S.Ct. 416 (some alterations in original).
¶39 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, 115 S.Ct. 1511 (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, 115 S.Ct. 1511. Acknowledging that the reasons for anonymity could be many, , 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 First Amendment." McIntyre, 514 U.S. at 342-43, 115 S.Ct. 1511. For Justice Stevens, writing in McIntyre, the value of anonymity in political speech could not be overstated:
"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, 115 S.Ct. 1511.
"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, 80 S.Ct. 536.
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, 115 S.Ct. 1511.
¶40 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, 78 S.Ct. 1163 ; see Gitlow, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. 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, 77 S.Ct. 1203 (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, 103 S.Ct. 416 (second and third alterations in original) (citation and internal quotation marks omitted) (quoting Sweezy, 354 U.S. at 265, 77 S.Ct. 1203 ; Gibson, 372 U.S. at 546, 83 S.Ct. 889 ).
¶41 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
¶42 The Does assert that the disclosure of their identities in the requested records will violate their First Amendment right to political anonymity. They contend that the trial court erred by determining that no constitutional privacy interest is implicated in this situation. We agree.
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.
¶43 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.
¶44 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.
1
¶45 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.
¶46 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.
¶47 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)
¶48 The First Amendment to the United States Constitution, as incorporated through the due process clause of the Fourteenth Amendment, "protects against the compelled disclosure of political associations and beliefs." Brown, 459 U.S. at 91, 103 S.Ct. 416 ; see also Buckley, 424 U.S. at 64, 96 S.Ct. 612 (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, 78 S.Ct. 1163. 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, 80 S.Ct. 412. Indeed, simple "exposure by government" may be sufficient to impinge such rights. Bates, 361 U.S. at 528, 80 S.Ct. 412.
¶49 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. We do not evaluate, however, whether disclosure of the Does’ identities is precluded by a statutory right to privacy.
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 Wash.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.
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.
¶50 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, 122 S.Ct. 2080, 153 L.Ed.2d 205 ; McIntyre, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 ; Brown, 459 U.S. 87, 103 S.Ct. 416, 74 L.Ed.2d 250 ; Buckley, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 ; Gibson, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 ; Shelton, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 ; Talley, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 ; Bates, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 ; Uphaus, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090 ; NAACP, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 ; Watkins, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 ; Sweezy, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 ; Wieman, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. 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. "It cannot 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, 77 S.Ct. 1203. 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, 80 S.Ct. 412 ; NAACP, 357 U.S. at 461, 78 S.Ct. 1163.
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 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.
¶51 Sueoka nevertheless contends that our Supreme Court's decision in Spokane Police Guild v. Liquor Control Board, 112 Wash.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. 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 Wash.2d at 31, 769 P.2d 283. 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 Wash.2d at 31, 769 P.2d 283. 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 Wash.2d at 37-38, 769 P.2d 283. 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 conduct at such a well attended and staged event which would be either lost or diminished by being made public." Spokane Police Guild, 112 Wash.2d at 38, 769 P.2d 283.
Br. of Resp't/Cross Appellant at 31.
¶52 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 location —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 Wash.2d at 37-38, 769 P.2d 283. 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.
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].
¶53 Sueoka additionally contends that the United States Supreme Court's decisional authority regarding the First Amendment right to political anonymity is 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." Again, we disagree.
Br. of Resp't/Cross Appellant at 32.
¶54 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, 83 S.Ct. 889. Nevertheless, the Court was clear that, "of course, all legitimate organizations are the beneficiaries of these protections." Gibson, 372 U.S. at 556, 83 S.Ct. 889. 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, 83 S.Ct. 889, such that exposure of those beliefs could discourage the exercise of constitutional rights.
In Gibson, a Florida legislative committee sought to subpoena NAACP membership lists, 372 U.S. at 540-41, 83 S.Ct. 889, 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.
¶55 Thus, it is the opprobrium that the community has for the individual's beliefs that is material to any "chilling effect" on constitutional rights. We are cognizant that, in the Seattle community, the Does would likely face opprobrium were their identities disclosed. 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. 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 citizens, including public employees, may benefit from the constitutional right to privacy in their political beliefs espoused by our nation's highest court. ¶56 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, 77 S.Ct. 1173. 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, 77 S.Ct. 1173 ; see also Uphaus, 360 U.S. at 84, 79 S.Ct. 1040 (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 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.
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-trumpstacks-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-blueking-county-than-he-did-the-last-time/ [https://perma.cc/N8F8-TFHL].
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 Wash.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.
Concurring in Wieman, 344 U.S. at 193, 73 S.Ct. 215, 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.
¶57 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 (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, 83 S.Ct. 328.
¶58 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." 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, 78 S.Ct. 1163. 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, 78 S.Ct. 1163.
Br. of Resp't/Cross Appellant at 32.
¶59 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, 80 S.Ct. 412 (Black & Douglas, JJ., concurring) (emphasis added); see also Shelton, 364 U.S. at 486-87, 81 S.Ct. 247 ("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.").
¶60 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)
¶61 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." We disagree. Contrary to Sueoka's assertion, the Does did not relinquish their constitutional rights.
Br. of Resp't/Cross Appellant at 27-28.
¶62 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.
¶63 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.
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.
¶64 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. 1101, 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, 46 S.Ct. 605. 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, 46 S.Ct. 605. 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, 46 S.Ct. 605. 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 U.S. at 593, 46 S.Ct. 605. 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, 46 S.Ct. 605.
¶65 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, 87 S.Ct. 616, 17 L.Ed.2d 562. 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, 87 S.Ct. 616. 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, 87 S.Ct. 616. 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, 87 S.Ct. 616 (footnote omitted).
¶66 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, 87 S.Ct. 616 (footnote omitted). Police officers, the Court concluded, "are not relegated to a watered-down version of constitutional rights." Garrity, 385 U.S. at 500, 87 S.Ct. 616. 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, 87 S.Ct. 616.
¶67 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, 87 S.Ct. 616 (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 employment. "[D]uress is inherent" when statements are thusly obtained. Garrity, 385 U.S. at 498, 87 S.Ct. 616.
¶68 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)
¶69 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.
¶70 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, 130 S.Ct. 2811, 177 L.Ed.2d 493. 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, 130 S.Ct. 2811. However, the Court articulated the standard it had applied "in related contexts," that "those resisting disclosure can prevail under the 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, 130 S.Ct. 2811 (alteration in original) (quoting Buckley, 424 U.S. at 74, 96 S.Ct. 612 ).
¶71 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 Wash.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 Wash.2d at 158, 786 P.2d 781. 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 Wash.2d at 158, 786 P.2d 781. 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 Wash.2d at 163, 786 P.2d 781. These affidavits, our Supreme Court held, were sufficient to demonstrate that disclosure would "chill" the Party's constitutional rights. Snedigar, 114 Wash.2d at 164, 786 P.2d 781.
¶72 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 impinge First Amendment rights. 114 Wash.2d at 162, 786 P.2d 781 (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 Wash.2d at 162, 786 P.2d 781 (citing Shelton, 364 U.S. at 485-86, 81 S.Ct. 247 ; Talley, 362 U.S. at 64, 80 S.Ct. 536 ; 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) ).
¶73 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, 78 S.Ct. 1163 ; Buckley, 424 U.S. at 65, 96 S.Ct. 612 ). 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 inevitable." Int'l Longshoremen's Ass'n, 667 F.2d at 272 (citing Shelton, 364 U.S. at 486, 81 S.Ct. 247 ; Pollard, 283 F. Supp. at 258 ). ¶74 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.
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, 81 S.Ct. 247. "[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, 81 S.Ct. 247 ; 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.
¶75 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. 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, 77 S.Ct. 1173.
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 Wash.2d at 414, 259 P.3d 190 ("[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.
¶76 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.
(d)
¶77 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.
¶78 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.
¶79 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’ 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).
¶80 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.
¶81 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.
See discussion infra § III C.
2
¶82 The United States Supreme Court has repeatedly affirmed 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,’ " NAACP [, supra , 357 U.S.,] at 463, 78 S.Ct.[, at 1172] (quoting Sweezy, 354 U.S. [at 265], 77 S.Ct. 1203 (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 [, supra , at 372 U.S., at 546, 83 S.Ct.[, at 893] ].
Brown, 459 U.S. at 91-92, 103 S.Ct. 416 (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.
¶83 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." 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, 87 S.Ct. 616. The City's assertion to the contrary, reliant as it is on inapposite decisional authority, is unpersuasive.
City of Seattle, Suppl. Mem. at 2.
¶84 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. (a)
¶85 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." 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.
City of Seattle, Suppl. Mem. at 2.
¶86 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, 103 S.Ct. 416 ; Gibson, 372 U.S. at 546, 83 S.Ct. 889 ; NAACP, 357 U.S. at 463, 78 S.Ct. 1163 ; Sweezy, 354 U.S. at 265, 77 S.Ct. 1203. 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, 77 S.Ct. 1203, 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, 96 S.Ct. 612.
¶87 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 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, 87 S.Ct. 616. 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, 87 S.Ct. 616. 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, 87 S.Ct. 616.
¶88 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). The City's reliance on Pickering is misplaced.
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.").
¶89 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, 88 S.Ct. 1731. 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, 88 S.Ct. 1731. He thereafter filed suit, asserting that the Illinois statute was unconstitutional as applied pursuant to the First and Fourteenth Amendments. Pickering, 391 U.S. at 565, 88 S.Ct. 1731.
¶90 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, 88 S.Ct. 1731. Thus, the Court announced what has come to be known as the " Pickering balancing test," 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, 88 S.Ct. 1731.
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.
¶91 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, 88 S.Ct. 1731 (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, 88 S.Ct. 1731. In other words, the " Pickering balancing test," which the City urges us to apply here, is applicable 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, 126 S.Ct. 1951.
¶92 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 [, supra , at 385 U.S.] at 605-06, 87 S.Ct.[, at 685].
391 U.S. at 568, 88 S.Ct. 1731 (some alterations in original).
¶93 Put simply, the notion that the Does, as public employees, "have curtailed First Amendment rights," as the City brazenly asserts, is directly contradicted 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. 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, 126 S.Ct. 1951. 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) ). Such principles do not apply to the facts of this case.
City of Seattle. Suppl. Mem. at 5.
See Progressive Democrats for Soc. Just. v. Bonta, 588 F. Supp. 3d 960 (N.D. Cal. 2022) ; Garcetti, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 ; 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, 88 S.Ct. 1731, 20 L.Ed.2d 811 ; 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.
In Connick, Justice Brennan disagreed with the majority's balancing of the competing considerations set forth in Pickering. 461 U.S. at 157-58, 103 S.Ct. 1684 (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, 103 S.Ct. 1684 (Brennan, J., dissenting) (citing Pickering, 391 U.S. at 574, 88 S.Ct. 1731 ).
The City also asserts that our Supreme Court's decision in Service Employees International Union Local 925 v. University of Washington, 193 Wash.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.
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 Wash.2d at 867-76, 447 P.3d 534. 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 Wash.2d at 865, 447 P.3d 534, 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 Wash.2d at 876, 447 P.3d 534.
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 Wash.2d at 695, 310 P.3d 1252.
¶94 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.
¶95 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, 87 S.Ct. 616 ; see also Pickering, 391 U.S. at 568, 88 S.Ct. 1731. 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, 103 S.Ct. 416 (second and third alterations in original) (citation and internal quotations marks omitted) (quoting Sweezy, 354 U.S. at 265, 77 S.Ct. 1203 ; Gibson, 372 U.S. at 546, 83 S.Ct. 889 ). 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)
¶96 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 Wash.2d at 719, 748 P.2d 597. 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 Wash.2d at 903, 346 P.3d 737. 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 Wash.2d 606, 611, 717 P.2d 1353 (1986) (recognizing the policy underlying the statute as "allow[ing] public scrutiny of government, rather than ... promot[ing] scrutiny of particular individuals who are unrelated to any governmental operation").
¶97 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." RCW 42.56.050.
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.
¶98 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 Wash.2d at 721, 748 P.2d 597 (quoting Hearst Corp. v. Hoppe, 90 Wash.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 Wash.2d at 726, 748 P.2d 597. "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 with which the public has a right to concern itself." Cowles Publ'g Co., 109 Wash.2d at 726, 748 P.2d 597. 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 Wash.2d at 727, 748 P.2d 597.
¶99 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 Wash.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 Wash.2d at 413, 259 P.3d 190 ; see also Bellevue John Does, 164 Wash.2d at 215-16, 189 P.3d 139. "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 Wash.2d at 215, 189 P.3d 139.
¶100 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 Police Guild, 172 Wash.2d at 416, 259 P.3d 190 ; Bellevue John Does, 164 Wash.2d at 221, 189 P.3d 139. 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 Wash.2d at 220, 189 P.3d 139. 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 Wash.2d at 220, 189 P.3d 139. Rather, disclosure in such circumstances, the court reasoned, " ‘serve[s] no interest other than gossip and sensation.’ " Bellevue John Does, 164 Wash.2d at 221, 189 P.3d 139 (quoting Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 129 Wash. App. 832, 854, 120 P.3d 616 (2005) ).
¶101 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 Wash.2d at 719, 748 P.2d 597 (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 Wash.2d at 413, 259 P.3d 190 ; Bellevue John Does, 164 Wash.2d at 213-16, 221, 189 P.3d 139 ; Cowles Publ'g Co., 109 Wash.2d at 726, 748 P.2d 597. In other words, in such circumstances, the State does not have an interest in disclosing the employees’ identities.
¶102 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. 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. ¶103 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, 77 S.Ct. 1173 (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, 79 S.Ct. 1040 (Brennan, J., dissenting).
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.
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 Wash.2d at 416, 259 P.3d 190 ("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 Wash.2d at 220, 189 P.3d 139 ("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 Wash.2d at 223, 189 P.3d 139. 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 Wash.2d at 414, 259 P.3d 190. 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 Wash.2d at 414, 259 P.3d 190. 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 Wash.2d at 414, 259 P.3d 190. 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.
¶104 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.
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 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 Wash.2d at 416, 259 P.3d 190 ("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 Wash.2d at 220, 189 P.3d 139 ("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, 81 S.Ct. 247. Here, the purposes of the PRA are achieved through disclosure of the redacted records.
(c)
¶105 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, 83 S.Ct. 328, 9 L.Ed.2d 405, "predated [its] more recent formulations of strict scrutiny"). However, even applying these "more recent formulations" of the standard, Town of Gilbert, 576 U.S. at 167, 135 S.Ct. 2218, the result herein remains unchanged.
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, 83 S.Ct. 328. 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, 96 S.Ct. 612 (citing Gibson, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 ; Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 ; Bates, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 ; Shelton, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 ; NAACP, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 ).
¶106 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.
¶107 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, 130 S.Ct. 876 (citation omitted) (quoting Fed. Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007) ). 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, 103 S.Ct. 416, 74 L.Ed.2d 250 ; Gibson, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 ; Bates, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 ; Shelton, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 ; NAACP, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488.
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, 135 S.Ct. 2218 (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, 130 S.Ct. 876, that the strict scrutiny standard applies in cases such as this.
¶108 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, 115 S.Ct. 1511.
¶109 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 Wash.2d at 719, 748 P.2d 597. Further evidencing the absence of a 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. 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.
See Appendix A ("Public Records Exemptions Accountability Committee – Sunshine Committee," Schedule of Review, updated March 2022). Original available at https://agportals3bucket.s3.amazonaws.com/uploadedfiles/Schedule% 20of% 20Review% 20Update% 20March% 202022.pdf.
¶110 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, 130 S.Ct. 876. 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, 124 S.Ct. 2783.
¶111 Here, the very remedy sought by the Does—redaction of their names and identifying information from the requested records—is precisely the narrow 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.
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).
C
¶112 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.
¶113 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, 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.
¶114 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 Wash.2d at 789, 418 P.3d 102 (quoting PAWS, 125 Wash.2d at 258, 884 P.2d 592 ). 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 Wash.2d at 757, 174 P.3d 60.
¶115 Our Supreme Court so held in Lyft, 190 Wash.2d 769, 418 P.3d 102, 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 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 Wash.2d at 773, 418 P.3d 102. Our Supreme Court determined that portions of the public records likely met "the definition of ‘trade secrets’ under the UTSA." Lyft, 190 Wash.2d at 777, 780-84, 418 P.3d 102. 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 Wash.2d at 773, 418 P.3d 102. Thus, our Supreme Court held that "finding an exemption applies under the PRA does not ipso facto support issuing an injunction." Lyft, 190 Wash.2d at 786, 418 P.3d 102.
¶116 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 ). We cannot interpret the PRA in a manner that would render it unconstitutional. Utter ex rel. State v. Bldg. Indus. Ass'n of Wash., 182 Wash.2d 398, 434, 341 P.3d 953 (2015) ("We construe statutes to avoid constitutional doubt."). Nor does this resolution of the issue do so.
The Supremacy Clause provides:
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.
¶117 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 Wash.2d at 786, 418 P.3d 102. 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.
¶118 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 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. 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 Wash.2d 581, 243 P.3d 919 (discussed infra at –––– – ––––).
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.
¶119 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 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.
¶120 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.
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 Wash.2d at 784-85, 418 P.3d 102.
IV
¶121 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 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.
¶122 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.
¶123 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
¶124 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 Wash.2d 30, 640 P.2d 716 (1982), and made the findings required therein. Judge Cahan also determined that the Does had complied with the 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.
¶125 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."
¶126 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."
B
¶127 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." WASH. 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 Wash.2d 1, 7, 330 P.3d 168 (2014) (quoting Dreiling v. Jain, 151 Wash.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 Wash.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 Wash.2d 30, 640 P.2d 716. 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).
¶128 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 Wash.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 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 Wash.2d at 189, 410 P.3d 1156.
¶129 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 Wash. App. at 627, 391 P.3d 496. 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 Wash. App. at 627, 391 P.3d 496 (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 Wash. App. at 628, 391 P.3d 496. 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 Wash. App. at 624, 391 P.3d 496.
¶130 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 Wash.2d at 189, 410 P.3d 1156. 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 G, 190 Wash.2d at 198, 410 P.3d 1156. Instead, the court held, Washington courts "rely on GR 15 and Ishikawa." Doe G, 190 Wash.2d at 198, 410 P.3d 1156.
C
¶131 Citing our Supreme Court's decision in Doe G, 190 Wash.2d 185, 410 P.3d 1156, Sueoka contends that Judge Widlan "used the wrong legal standard" in denying his motion to preclude the Does from litigating pseudonymously. However, in so asserting, Sueoka misperceives the issue as one of Washington law. It is not. Accordingly, his argument fails.
Br. of Resp't/Cross Appellant at 69-71.
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 Wash.2d 689, 711, 344 P.3d 1186 (2015) ; see also Doe AA v. King County, 15 Wash. 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.
¶132 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, 135 S.Ct. 1378. When parties who assert that disclosure of their identities would violate a federal constitutional right seek to litigate pseudonymously, it is federal open courts jurisprudence, arising from the First Amendment itself, that we must apply.
¶133 This holding is consistent with our Supreme Court's decision in Doe G, 190 Wash.2d 185, 410 P.3d 1156. 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 Wash.2d at 189, 410 P.3d 1156. 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 Wash.2d at 189, 198, 410 P.3d 1156.
¶134 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.
¶135 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 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).
¶136 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. In this action, the "injury 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 NAACP, 357 U.S. at 459-60, 78 S.Ct. 1163, 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, 78 S.Ct. 1163.
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, 78 S.Ct. 1163. 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, 78 S.Ct. 1163. See also Pollard, 283 F. Supp. at 256 (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.
¶137 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.
¶138 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.
D
¶139 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.
¶140 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, 130 S.Ct. 876 (quoting Fed. Election Comm'n, 551 U.S. at 464, 127 S.Ct. 2652 ), 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.
¶141 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 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.
¶142 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.
¶143 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. Hundtofte, 181 Wash.2d at 16, 330 P.3d 168 (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. 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).
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.
¶144 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 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.
¶145 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
¶146 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.
¶147 Nevertheless, we are aware of the cultural and political tenor of our times. This includes an awareness that many Americans despair that judicial decisions 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
¶148 1. Joseph R. Biden, Jr. won the 2020 presidential election, receiving 81,283,501 popular votes. Donald J. Trump lost the 2020 presidential election, receiving 74,223,975 popular votes. Biden received 7,059,526 more votes than did Trump.
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]
Federal Elections 2020, supra, at 5.
¶149 2. Biden's popular vote total was the largest ever received by a candidate for President of the United States.
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].
¶150 3. Biden received 51.3 percent of the popular vote. 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.
Federal Elections 2020, supra, at 5.
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].
¶151 4. Biden earned 306 electoral votes. Trump earned 232. In 2016, Trump earned 306 electoral votes, while Hillary Clinton earned 232. Thus, Biden defeated Trump by the same Electoral College margin as Trump defeated Clinton. 2
Federal Elections 2020, supra, at 7.
2016 Presidential Election Results , N.Y. Times (Aug. 19, 2017, 9:00 AM), www.nytimes.com/elections/2016/results/president.
The Rally on January 6, 2021
¶152 1. A "Stop the Steal" rally was held on January 6, 2021 on public property in the District of Columbia. Various permits were sought and obtained, authorizing use of the public property.
See note 13, supra .
¶153 2. The theme of the rally was that the election had been "stolen" from Donald Trump. Thus, Trump and rally organizers urged, Congress should not finalize Biden's victory by certifying the Electoral College results (as the law required).
H.R. Rep. No. 117-663, at 231-33, 499-502 (2022), https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf[https://perma.cc/UH8B-ZQ7D].
¶154 3. Trump, the sitting president, spoke at the rally.
H.R. Rep. No. 117-663, at 231-33.
3
The Insurrection at the Capitol
¶155 1. As the rally ended, a civil disturbance began at the Capitol. Hundreds of persons illegally broke through security lines and eventually into the Capitol Building.
Audrey Kurth Cronin, The Capitol Has Been Breached Before: This Time It Was Different , Am. Univ. Sch. of Int'l Serv. (Feb. 9, 2021), https://www.american.edu/sis/centers/security-technology/the-capitol-has-been-attacked-beforethis-time-it-was-different.cfm [https://perma.cc/Y4NJ-7GE3]. See discussion H.R. Rep. No. 117-663, at 637-88.
¶156 2. Both the House of Representatives and the Senate were forced to adjourn and flee to safety.
H.R. Rep. No. 117-663, at 664-66.
¶157 3. In the riotous melee that ensued over 140 law enforcement officers were injured. According to a U.S. Senate report, seven deaths were attributed to the violence that took place.
Comm. On Homeland SEC. & Governmental Affairs & Comm. on Rules & Admin., U.S. Senate, Examining the U.S. Capitol Attack: A Review of the Security, Planning, and Response Failures on January 6, at 33 (June 2021), https://www.rules.senate.gov/imo/media/doc/Jan% 206% 20HSGAC% 20Rules% 20Report.pdf[https://perma.cc/DL5Q-5XT3].
Examining the U.S. Capitol Attack , supra, at 1.
¶158 4. The common goal of the rioters was to keep Congress from performing its lawful function—certification of Biden's presidential election victory. Some rioters, including those who chanted "Hang Mike Pence," had other goals, such as the killing or kidnapping of members of Congress.
Examining the U.S. Capitol Attack , supra, at 1.
H.R. Rep. No. 117-663, at 37-39; Cronin, supra.
5. For the first time since the War of 1812, the United States government lost physical control of the Capitol Building to a group of attackers.
Cronin, supra; Amanda Holpuch, US Capitol's Last Breach Was More Than 200 Years Ago , Guardian (Jan. 6, 2021, 7:59 PM), https://www.theguardian.com/us-news/2021/jan/06/us-capitol-building-washington-history-breach [https://perma.cc/RU25-E3LP]; Amy Sherman, A History of Breaches and Violence at the US Capitol , Politifact (Jan. 6, 2021), https://www.politifact.com/article/2021/jan/07/history-breaches-and-violence-us-capitol/[https://perma.cc/8A7C-5L2H].
¶159 6. Over 1,000 persons have been charged with crimes premised on actions occurring at the Capitol on January 6, 2021. Over 630 have, to date, pleaded guilty or been found guilty after trial.
The Jan. 6 Attack: The Cases Behind the Biggest Criminal Investigation in U.S. History , Nat'l Pub. Radio (May 12, 2023, 5:25 PM), https://www.npr.org/2021/02/09/965472049/the-capitol-siege-the-arrested-and-their-stories[https://perma.cc/S38K-B8DK].
The Jan. 6 Attack: The Cases Behind the Biggest Criminal Investigation in U.S. History , supra.
¶160 7. Many of the insurrectionists belonged to groups espousing white supremacist views. Others of the rioters, while not group members, were shown to possess such views. ¶161 Given all of these facts, it is easy to understand the concerns motivating the City and the requesters. Nevertheless, our duty to the United States Constitution, and the Constitution's embrace and protection of a right to anonymity in political activity, lead us to the decisions we announce today.
See discussion H.R. Rep. No. 117-663, at 499-576; Sabrina Tavernise & Matthew Rosenberg, These Are the Rioters Who Stormed the Nation's Capitol , N.Y. Times (May 12, 2021), https://www.nytimes.com/2021/01/07/us/names-of-rioters-capitol.html; Deena Zaru, The Symbols of Hate and Far-Right Extremism on Display in Pro-Trump Capitol Siege , ABC News (Jan. 14, 2021, 2:01 AM), https://www.abcnewsgo.com/us/symbols-hate-extremism-display-pro-trump-captiol-siege/story?id=75177671 [https://perma.cc/3T4R-2JRL]; Matthew Rosenberg & Ainara Tiefenthäler, Decoding the Far-Right Symbols at the Capitol Riot , N.Y. Times (Jan. 13, 2021), https://www.nytimes.com/2021/01/13/video/extremist-signs-symbols-capitol-riot.html.
B
¶162 The trial court's denial of the Does’ motion for a preliminary injunction is reversed and remanded.
¶163 The trial court's issuance of a temporary restraining order is affirmed.
¶164 The trial court's order denying Sueoka's motion to preclude the Does’ use of pseudonyms is affirmed.
¶165 Sueoka's motion to change the case title is denied.
¶166 Affirmed in part, reversed in part, and remanded.
WE CONCUR:
Coburn, J.
Smith, C.J.
APPENDIX A