IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

TIMOTHY WHITE, No. 49599-6-II

Appellant,

v. PUBLISHED OPINION

CLARK COUNTY,

Respondent.

MAXA, A.C.J. – Timothy White submitted a Public Records Act (PRA)1request to Clark 

County, requesting production of ballots cast in the November 2013 election. After the County 

declined to produce the ballots, White filed a PRA action and a motion to show cause to compel 

production. White appeals the trial court’s ruling that the ballots were exempt from disclosure 

under the PRA.

White previously had submitted – a day after the election – a PRA request to Clark 

County for pre-tabulated ballot images from the November 2013 election. This court held that 

the County was not required to produce pre-tabulated ballots because article VI, section 6 of the 

Washington Constitution, various sections of Title 29A RCW, and secretary of state regulations 

together constituted an “other statute” exemption to the PRA under RCW 42.56.070(1) for those 

 

1 Chapter 42.56 RCW.

Filed

Washington State

Court of Appeals

Division Two

July 25, 2017
No. 49599-6-II

2

ballots. White v. Clark County, 188 Wn. App. 622, 631, 637, 354 P.3d 38 (2015), review denied, 

185 Wn.2d 1009 (2016) [White I]. Division One of this court issued a similar ruling regarding 

White’s identical PRA requests to two other counties. White v. Skagit County, 188 Wn. App. 

886, 898, 355 P.3d 1178 (2015), review denied, 185 Wn.2d 1009 (2016) [White II].

We acknowledge that these cases do not directly control White’s current PRA request 

because he now is requesting ballots more than 60 days after they were tabulated. But we hold 

White is not entitled to disclosure of the requested records because (1) both RCW 29A.60.110 

and WAC 434-261-045 create an “other statute” exemption that applies to election ballots even 

after the minimum 60-day retention period after tabulation, (2) whether concerns about 

jeopardizing the secrecy of the vote could have been addressed by redacting certain information 

is immaterial because the “other statute” exemption applies to the entire ballot, and (3) RCW 

42.56.210(2) does not override this exemption because White cannot show that withholding the 

ballots is “clearly unnecessary” to protect the vital government interest in preserving the voters’

right to absolute secrecy of their votes.

Accordingly, we affirm the trial court’s denial of White’s motion to show cause and 

dismissal of White’s PRA action. 

FACTS

On July 2, 2015, White sent a PRA request to the County for election records relating to 

the November 2013 general election, including paper ballots and images of ballots “received, 

cast, voted, or otherwise used.”

2

 Clerk’s Papers (CP) at 16. The County responded that it could 

 

2 We refer to both paper ballots and ballot images collectively as “ballots.” Electronic images of 

ballots constitute “ballots” under RCW 29A.04.008(1)(c). White I, 188 Wn. App. 632.
No. 49599-6-II

3

not release the ballots because the records were subject to the Washington Constitution’s 

mandate of absolute secrecy of the vote. The County also cited both the White I and White II

decisions as support for its conclusion that the ballots were exempt from disclosure. The County 

did release almost 9,000 pages of other election records.

White filed a complaint alleging that the County had violated the PRA and seeking to 

compel production of the requested ballots. At the same time, White filed a motion under RCW 

42.56.550(1) requiring the County to show cause why the trial court should not order production

of the requested ballots. The court ruled that “voted ballots are exempt from production under 

the PRA and Clark County’s refusal to provide copies of the requested ballots is proper based on 

the applicable constitutional, statutory and case law.” CP at 518. Therefore, the court concluded 

that the County complied with the PRA in its response to White’s request, denied White’s 

motion to show cause, and dismissed White’s PRA complaint.

White appeals the trial court’s denial of relief under the PRA. 

ANALYSIS

A. PRA EXEMPTION FOR TABULATED ELECTION BALLOTS

White argues that the County wrongfully failed to produce the ballots he requested 

because the “other statute” exemption for pre-tabulated ballots does not apply to a request for

tabulated ballots made more than 60 days after tabulation. We hold that both RCW 29A.60.110 

and WAC 434-261-045 provide an “other statute” exemption for tabulated ballots even beyond 

60 days after tabulation.
No. 49599-6-II

4

1. Legal Principles

The PRA mandates the broad disclosure of public records. John Doe A v. Wash. State 

Patrol, 185 Wn.2d 363, 371, 374 P.3d 63 (2016). Therefore, an agency has an affirmative 

obligation to disclose records requested under the PRA unless a specific exemption applies. Id.

at 371-72. And we must liberally construe the PRA in favor of disclosure and narrowly construe 

its exemptions. RCW 42.56.030; John Doe A, 185 Wn.2d at 371. The agency bears the burden 

of establishing that an exemption to production applies. RCW 42.56.550(1); Sargent v. Seattle 

Police Dep’t, 179 Wn.2d 376, 385-86, 314 P.3d 1093 (2013).

A requesting party denied disclosure may move for a show cause hearing, at which the 

burden of proof is on the agency to show that its denial was proper. RCW 42.56.550(1), (3). We 

review the agency’s actions de novo. RCW 42.56.550(3).

An agency may lawfully withhold production of records if a specific exemption applies. 

White I, 188 Wn. App. at 630. There are three sources of PRA exemptions: (1) enumerated 

exemptions contained in the PRA itself, (2) any “other statute” that exempts or prohibits 

disclosure, and (3) the Washington Constitution. Id. at 630-31.

The “other statute” exemption is found in RCW 42.56.070(1): “Each agency, in 

accordance with published rules, shall make available for public inspection and copying all 

public records, unless the record falls within the specific exemptions of . . . this chapter, or other 

statute which exempts or prohibits disclosure of specific information or records.” We will find 

an RCW 42.56.070(1) “other statute” exemption “only when the legislature has made it 

explicitly clear that a specific record, or portions of it, is exempt or otherwise prohibited from 

production.” John Doe A, 185 Wn.2d at 373. The statute “does not need to expressly address 
No. 49599-6-II

5

the PRA, but it must expressly prohibit or exempt the release of records.” Id. at 372. Whether a 

statute is an “other statute” under RCW 42.56.070(1) is a question of law that we review de 

novo. Id. at 371. 

2. Limited Holding of White I

White is correct that White I does not directly control the resolution of this case. In 

White I, we noted that RCW 29A.40.110(2) addresses ballot security for the period between 

receipt of the ballot and the beginning of ballot processing, and RCW 29A.60.110 addresses 

ballot security after tabulation. 188 Wn. App. at 633-34. White’s request for pre-tabulated 

ballots in White I involved a “gap” in ballot security for the period from the beginning of 

processing until tabulation. Id. at 634. We held that an “other statute” exemption existed for 

pre-tabulated ballots based on these statutes and applicable secretary of state regulations. Id. at 

637. 

But we did not address in White I whether an exemption existed for tabulated ballots, 

stating only that ballot images must be kept secure until “at least” 60 days after tabulation. Id. at 

637.

3. “Other Statute” Exemption Under RCW 29A.60.110

RCW 29A.60.110 expressly addresses the security and secrecy of tabulated ballots.

 Immediately after their tabulation, all ballots counted at a ballot counting center 

must be sealed in containers that identify the primary or election and be retained 

for at least sixty days or according to federal law, whichever is longer.

 In the presence of major party observers who are available, ballots may be 

removed from the sealed containers at the elections department and consolidated 

into one sealed container for storage purposes. The containers may only be opened

by the canvassing board [1] as part of the canvass, [2] to conduct recounts, [3] to 

conduct a random check under RCW 29A.60.170, or [4] by order of the superior 

court in a contest or election dispute.
No. 49599-6-II

6

RCW 29A.60.110 (emphasis added). This statute unambiguously requires that tabulated ballots 

be kept in sealed containers and can be opened by the canvassing board only in one of four 

specified situations. 

White makes three arguments against treating RCW 29A.60.110 as an “other statute”

exemption. First, he argues that once the 60-day retention period required by RCW 29A.60.110 

has expired, the ballots must become available for public release pursuant to a PRA request. But 

the 60-day period does not apply to keeping the tabulated ballots in sealed containers. That 

period applies to how long the sealed ballots must be retained. In other words, the sealed ballots 

may be discarded after 60 days. 

Nothing in the language of RCW 29A.60.110 suggests that the ballots need only be kept 

secure for 60 days. RCW 29A.60.110 contains no time limit for keeping the ballots in sealed 

containers. Therefore, under the plain statutory language, the agency has two choices once the 

60-day period ends: the ballots must be kept in sealed containers indefinitely unless one of the 

four specified situations arises or the ballots must be discarded. Neither choice allows the ballots 

to be disclosed to a requesting person.

Second, White argues that Title 29A RCW explicitly exempts at least six types of 

documents from the PRA, but there is no explicit exemption for tabulated ballots. He claims that 

this omission indicates that the legislature did not intend for ballots to be exempt from the PRA. 

But as Division One noted in White II, the legislature has also “specified that certain nonballot

election records may be disclosed to the public.” 188 Wn. App. at 897 (emphasis added). The 

court noted that it would be superfluous for the legislature to single out specific types of 

elections records as subject to disclosure unless they were viewed as exceptions to the general 
No. 49599-6-II

7

rule of nondisclosure. Id. Further, because under RCW 29A.60.110 is clear that tabulated 

ballots must remain sealed, there was no reason for the legislature to include an explicit 

exemption.

Third, White argues that if simply requiring secure storage of records amounts to an 

exemption, then most records would be exempt from disclosure under the PRA. He notes that 

RCW 40.14.020(4) requires the state archivist to maintain the security of all state public records 

but does not thereby exempt all state public records from disclosure. However, White overlooks 

that RCW 29A.60.110 does not simply require sealed storage; it also includes unambiguous 

language stating that the sealed containers may only be opened in four specific situations. It is 

that restriction on accessing the ballots that creates the exemption.

The provisions of RCW 29A.60.110 are inconsistent with disclosing copies of tabulated 

ballots under the PRA. Therefore, we hold that RCW 29A.60.110 constitutes an express “other 

statute” exemption for tabulated ballots.

4. “Other Statute” Exemption Under WAC 434-261-045

In addition to RCW 29A.60.110, WAC 434-261-045 also provides an “other statute”

exemption to the PRA. The legislature has required the secretary of state to make rules 

regarding election “[s]tandards and procedures to guarantee the secrecy of ballots.” RCW 

29A.04.611(34). Under that authority, the secretary of state enacted WAC 434-261-045, which 

provides:

Received ballots and ballot images must be maintained in secure storage except 

during processing, duplication, inspection by the canvassing board, or tabulation. 

Secure storage must employ the use of numbered seals and logs, or other security 

measures that will detect any inappropriate access to the secured materials. Ballots 

and ballot images may only be accessed in accordance with RCW 29A.60.110 and 

29A.60.125.
No. 49599-6-II

8

(Emphasis added.)

WAC 434-261-045 unambiguously requires that ballots be kept in secure storage at all

times other than during processing, duplication, inspection, and tabulation and states that they 

can only be accessed in accordance with RCW 29A.60.110 and 29A.60.125. As discussed 

above, RCW 29A.60.110 allows for access only in four specified situations. And RCW 

29A.60.125 provides procedures for handling damaged ballots, and expressly states that “ballots 

must be sealed in secure storage at all times, except during duplication, inspection by the 

canvassing board, or tabulation.” 

White argues that WAC 434-261-045 cannot be an “other statute” because state 

administrative rules cannot provide a PRA exemption. But in White I, this court considered and 

rejected this argument. 188 Wn. App. at 636. The court noted that although an agency cannot be 

allowed to determine what records are exempt from the PRA, the secretary of state did not 

attempt to regulate disclosure or interpret the disclosure requirements of the PRA when 

promulgating WAC 434-261-045. Id. Instead, the secretary of state “implemented regulations to 

ensure ballot security and secrecy during processing, pursuant to the express enabling provisions 

of RCW 29A.04.611.” Id. 

The provisions of WAC 434-261-045 are inconsistent with disclosing copies of tabulated 

ballots under the PRA. Under White I, this regulation can qualify as an “other statute” for PRA 

purposes. 188 Wn. App. at 635-36. Therefore, we hold that WAC 434-261-045 constitutes an 

express “other statute” exemption for tabulated ballots and ballot images.
No. 49599-6-II

9

5. Redaction is Immaterial

White argues that even if the ballots are subject to an exemption to protect the identity of 

individual voters, the County was required to produce the ballots because it could have redacted 

any identifying marks that could identify individual voters. We disagree.

As discussed above, we hold that tabulated ballots are exempt in their entirety from 

disclosure under the PRA. RCW 29A.60.110 and WAC 434-261-045 provide categorical 

exemptions, not conditional ones. See Resident Action Council v. Seattle Hous. Auth., 177 

Wn.2d 417, 434, 327 P.3d 600 (2013) (noting categorical exemptions limit a particular type of 

information or record). As a result, whether the ballots can be redacted to address specific 

secrecy concerns is immaterial. See id. at 433, 437 (“[I]f a type of record is exempted, then 

meaningful redaction generally is impossible,” unless redaction will transform the record into an 

entirely different type of record). The ballots are exempt from production without qualification.

Here, RCW 29A.60.110 and WAC 434-261-045 govern handling of “ballots,” which 

means that their exemptions apply to the ballots in their entirety. And no amount of redaction 

will transform the ballots into some other type of record. Therefore, we reject White’s redaction 

argument.

B. DISREGARDING THE PRA EXEMPTION 

White argues that even if the ballots are subject to an “other statute” PRA exemption, the 

County was required to produce them under RCW 42.56.210(2) because nondisclosure is not 

necessary to protect privacy or a vital government function. We disagree. 

RCW 42.56.210(2) states that the release of specific records that are otherwise exempt 

from disclosure “may be permitted if the superior court in the county in which the record is 
No. 49599-6-II

10

maintained finds, after a hearing . . . that the exemption of such records is clearly unnecessary to 

protect any individual’s right of privacy or any vital governmental function.” (Emphasis added.) 

Such a finding overrides the PRA exemption and requires the agency to produce the requested 

records. White I, 188 Wn. App. at 637.

White argues that exempting ballots three years after the election in which they were cast 

is unnecessary to protect privacy and vital government interests. He asserts that production 

would pose no risk to ballot anonymity and that there is no risk of election fraud or tampering 

when the election is over. He also points out that images of individual ballots have been 

displayed on election-related websites without revealing voter identity. However, White fails to 

show that withholding the ballots is “clearly unnecessary” to protect any individual’s right to 

privacy or any vital governmental function. RCW 42.56.210(2).

Article VI, section 6 of the Washington Constitution provides voters “absolute secrecy”

in their votes. (Emphasis added.) Washington statutes and regulations also protect this right 

and ensure that ballots are secure. See White I, 188 Wn. App. at 638. “Preserving the integrity 

and secrecy of votes and the security of election ballots clearly is a vital government function.” 

Id.; see also White II, 188 Wn. App. at 898.

Accordingly, we reject White’s argument that the PRA exemption for election ballots 

should be disregarded under RCW 42.56.210(2).

C. ATTORNEY FEES

White seeks recovery of his reasonable attorney fees for work performed in the trial court 

and on appeal. RCW 42.56.550(4) provides that any person who prevails against an agency in 

any action in the courts seeking the right to inspect or copy any public record shall be awarded 
No. 49599-6-II

11

reasonable attorney fees. Because White is not a prevailing party, he is not entitled to attorney 

fees either in the trial court or on appeal.

CONCLUSION

We affirm the trial court’s denial of White’s show cause motion and dismissal of White’s

PRA action. 

MAXA, A.C.J.

We concur:

LEE, J.

SUTTON, J.