Jane Does 1-10 et al v. University of Washington et al

MEMORANDUM

W.D. Wash.November 28, 2017

UNIVERSITY OF WASHINGTON’S SUPPLEMENTAL MEMORANDUM REGARDING WASHINGTON PUBLIC EMPLOYEES ASSOCIATION CASE 2:16-cv-01212-JLR 1 ATTORNEY GENERAL OF WASHINGTON University of Washington Division 4333 Brooklyn Avenue NE, 18th Floor UW Campus Box 359475 Seattle, Washington 98195-9475 Phone (206) 543-4150 Fax (206) 543-0779 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JANE AND JOHN DOES 1 - 10, individually and on behalf of others similarly situated, Plaintiffs, v. UNIVERSITY OF WASHINGTON, a Washington public corporation; PERRY TAPPER, Public Records Compliance Officer at the University of Washington, in his official capacity; and DAVID DALEIDEN, an individual, Defendants. No. 2:16-cv-01212-JLR DEFENDANT UNIVERSITY OF WASHINGTON’S SUPPLEMENTAL MEMORANDUM REGARDING WASHINGTON PUBLIC EMPLOYEES ASSOCIATION CASE Defendants UNIVERSITY OF WASHINGTON and PERRY TAPPER1 file this supplemental memorandum in response to the Court’s request for additional briefing regarding Washington Public Employees Association. v. Washington State Center for Childhood Deafness 1 Mr. Tapper does not by this filing waive any affirmative defenses he may have in his official capacity, including qualified immunity. Case 2:16-cv-01212-JLR Document 126 Filed 11/28/17 Page 1 of 4 UNIVERSITY OF WASHINGTON’S SUPPLEMENTAL MEMORANDUM REGARDING WASHINGTON PUBLIC EMPLOYEES ASSOCIATION CASE 2:16-cv-01212-JLR 2 ATTORNEY GENERAL OF WASHINGTON University of Washington Division 4333 Brooklyn Avenue NE, 18th Floor UW Campus Box 359475 Seattle, Washington 98195-9475 Phone (206) 543-4150 Fax (206) 543-0779 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 & Hearing Loss, 404 P.3d 111 (Wash. Ct. App. 2017). Order (Dkt. # 125).2 Wash. Pub. Emp. Assoc. confirms that constitutional protections may exempt certain records or portions of records from production because such protections necessarily supersede contrary statutes. 404 P.3d at 115. The notion that constitutional protections must be read into the Washington State Public Records Act (PRA), Wash. Rev. Code 42.56, is not new. See Seattle Times Co. v. Serko, 243 P.3d 919 (Wash. 2010); Yakima County v. Yakima Herald-Republic, 246 P.3d 768 (Wash. 2011); Freedom Foundation v. Gregoire, 310 P.3d 1252 (Wash. 2013). Those cases have previously been briefed to the court. UW Response to Prelim. Inj., Dkt. # 45 at 5-6. Wash. Pub. Emp. Assoc. provides some additional guidance as to how Washington courts may interpret the interaction between the PRA and constitutional protections specifically related to privacy interests. 404 P.3d at 115-117. The decision also holds that individuals—in that case public employees—may continue to have a protectable privacy interest in information that they share with others. Id. at 116. The court was also aware that the information at issue may be publically available in other contexts.3 The University maintains that in reviewing the records at issue for relevant exemptions it did not identify any clear exemption that would protect individuals’ identifying information. The University continues to believe that Plaintiffs are in the best position to assert their constitutionally 2 Wash. Pub. Emp. Assoc. was filed on October 31, 2017. Parties to that case have until November 30, 2017 to file a petition for discretionary review by the Washington State Supreme Court. Defendant Freedom Foundation has indicated it will file a petition for review. See, e.g., Walker Orenstein, State Worker Unions Get Court Victory in Public Records Clash with Conservative Group, THE OLYMPIAN, Oct. 31, 2017 (updated Nov. 6, 2017), http://www.theolympian.com/news/politics-government/article181986881.html. (“Dewhirst [chief litigation counsel for the Freedom Foundation] predicted the case likely will be appealed”). 3 As noted in Respondent Freedom Foundation’s brief in that case, the names, addresses, and birthdates of registered voters in Washington are available from the Secretary of State on request. Br. of Resp. Freedom Foundation at 9-10, Wash. Pub. Emp. Assoc., 404 P.3d 111 (2017) (No. 49224-5-II), http://www.courts.wa.gov/content/Briefs/A02/492245%20Respondent's%20Brief%20Freedom%20Foundation.pdf; Wash. Sec’y of State, Washington Voter Registration Database Extract Request, https://www.sos.wa.gov/elections/vrdb/extract-requests.aspx (last visited Nov. 28, 2017); Wash. Sec’y of State Statewide Voter Registration Database Extract and Voting History File Formats (2012), https://www.sos.wa.gov/_assets/elections/VRDBDatabaseFields.pdf (listing of information included in response to request for the database). Case 2:16-cv-01212-JLR Document 126 Filed 11/28/17 Page 2 of 4 UNIVERSITY OF WASHINGTON’S SUPPLEMENTAL MEMORANDUM REGARDING WASHINGTON PUBLIC EMPLOYEES ASSOCIATION CASE 2:16-cv-01212-JLR 3 ATTORNEY GENERAL OF WASHINGTON University of Washington Division 4333 Brooklyn Avenue NE, 18th Floor UW Campus Box 359475 Seattle, Washington 98195-9475 Phone (206) 543-4150 Fax (206) 543-0779 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 protected interests, and what harms may result from the release of the requested records without redaction of their personally identifying information. RESPECTFULLY SUBMITTED THIS 28th day of November 2017. ROBERT W. FERGUSON Washington Attorney General /s/ Nancy S. Garland NANCY S. GARLAND, WSBA #43501 Assistant Attorney General Washington Attorney General’s Office University of Washington Division 4333 Brooklyn Avenue NE, 18th Floor Seattle, Washington 98195-9475 Phone: (206) 543-4150 Facsimile: (206) 543-0779 E-mail: nancysg@uw.edu Attorneys for Defendant the University of Washington Case 2:16-cv-01212-JLR Document 126 Filed 11/28/17 Page 3 of 4 UNIVERSITY OF WASHINGTON’S SUPPLEMENTAL MEMORANDUM REGARDING WASHINGTON PUBLIC EMPLOYEES ASSOCIATION CASE 2:16-cv-01212-JLR 4 ATTORNEY GENERAL OF WASHINGTON University of Washington Division 4333 Brooklyn Avenue NE, 18th Floor UW Campus Box 359475 Seattle, Washington 98195-9475 Phone (206) 543-4150 Fax (206) 543-0779 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE I certify, under penalty of perjury under the laws of the State of Washington, that I electronically filed the foregoing Defendant University of Washington’s Supplemental Memorandum Regarding Washington Public Employees Association Case with the Clerk of the Court using the CM/ECF System, which will send notification of such filing to the attorneys of record. DATED this 28th day of November, 2017. /s/ Jeanie Hines__________________ Jeanie Hines, Legal Assistant Case 2:16-cv-01212-JLR Document 126 Filed 11/28/17 Page 4 of 4