/FILE~ IN CLERKI OFFICI "'-· 

1UPREME COURT, 81'R1 Oil' WIIIIINQ'ftM 

DATE DEC 1 1 2014 \ 

;;~·' 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

CITY OF LAKEWOOD, A Municipal ) 

Corporation of the State of Washington, ) 

) 

Petitioner, ) 

) 

v. ) 

) 

DAVID KOENIG, individually, ) 

) 

Respondent. ) 

·-------) 

No. 89648-8 

EnBanc 

Filed DEC 1 1 2014 

GONZALEZ, J.-Our Public Records Act (PRA), chapter 42.56 RCW, provides 

attorney fees to those who must resort to the courts to vindicate either their right to 

inspect public records or their right to receive a response to a records request. An 

agency violates a requestor's right to receive a response when it withholds or redacts 

public records without articulating a specific applicable exemption and providing a 

"brief explanation of how the exemption applies to the record withheld." RCW 

42.56.210(3). We are asked to decide whether the city of Lakewood's explanation for 

redacting driver's license numbers from records produced for David Koenig was 

inadequate and, if so, whether Koenig is entitled to attorney fees. We hold that the 

city's response was inadequate and Koenig is entitled to fees. 
City of Lakewood v. Koenig, No. 89648-8 

FACTS 

In October 2007, Koenig requested three sets of records from the city of 

Lakewood. He requested ( 1) records about the arrest and prosecution of a Lakewood 

police detective in January 2005 for patronizing a prostitute; (2) records about a 

November 2006 auto accident in the city of Fife, where a Fife police officer struck a 

pedestrian with his patrol car and the Lakewood Police Department assisted with the 

investigation; and (3) records about Tacoma police officer Michael Justice's 1998 

arrest and subsequent prosecution on fourth degree assault charges. 

In November 2007, the city advised Koenig by letter that responsive records 

were available for review and pickup. The city redacted, among other things, driver's 

license numbers from various types of documents it produced. The city justified the 

redaction of driver's license numbers by citation to statutes: 

Records pertaining to the arrest and prosecution of a Lakewood Police 

Detective on or around 1125/05 

[The detective's] Driver's License number has been redacted pursuant to RCW 

46.52.120 and RCW 46.52.130. 

Records Pertaining to Fife Collision. 

The City is making available the investigation about an auto accident that 

occurred in the City of Fife in November of2006. The City has redacted the 

dates of birth, driver's license numbers and social security numbers of ( 1) the 

involved officer; (2) the alleged victim; and (3) the listed eyewitnesses. These 

redactions are made pursuant to RCW 42.56.050, RCW 42.56.240, RCW 

46.52.120, and RCW 46.52.130. 

2 
City of Lakewood v. Koenig, No. 89648-8 

Records Pertaining to the Arrest and Prosecution of Michael Justice . 

. . . The driver's license number of Michael Justice has been redacted pursuant 

to RCW 42.56.050, 46.52.120 and 46.52.130. 

Clerk's Papers (CP) at 75-76. The city's letter advised Koenig: "[U]nless you have 

notified the City- in writing- by the close ofbusiness on December 21, 2007, that its 

response satisfies your requests, the City is prepared to take appropriate legal action to 

determine that it has fully complied with each of these requests." !d. at 77. 

Koenig questioned the city's reliance on the statutes it cited. Among other 

things, Koenig asked the city to specify which exemption it claimed under RCW 

4·2.56.2401 and to clarify whether the it was also claiming driver's license numbers 

were exempt under the federal Driver's Privacy Protection Act of 1994 (FDPP A), 18 

U.S.C. § 2721, and Reno v. Condon, 528 U.S. 141, 120 S. Ct. 666, 145 L. Ed. 2d 587 

(2000).2 

In a response letter dated February 25, 2008, the city supplemented the basis 

for its redaction of driver's license numbers to include the FDPPA and Reno, 528 U.S. 

1 Former RCW 42.56.240 (2005), in effect at the time of the city's response, contained five 

subsections. Seven subsections have since been added through numerous legislative 

amendments, but none of the amendments have altered subsections (1)-(5). See LAWS OF 2013, 

ch. 315, § 2, ch.190, § 7, ch. 183, § 1; LAWS OF2012, ch. 88, § 1; LAWS OF 2010, ch. 266, § 2, 

ch. 182, § 5; LAWS OF 2008, ch. 276, § 202 (codified at RCW 42.56.240(6)-(12)), 

2 The city initiated suit while Koenig and the city were already engaged in pending litigation. In 

that other case, the city also redacted driver's license numbers and eventually cited to the FDPPA 

and former RCW 46.12.390 (2005). 

3 
City ofLakewood v. Koenig, No. 89648-8 

141. The city said that it redacted witness and victim dates of birth pursuant to RCW 

42.56.240(2) because "the date of birth together with a name has the potential to link a 

particular individual with a particular identity thus creating the potential to endanger 

an individual's life, physical safety or property." CP at 87-88. But the city declined 

to explain how RCW 42.56.240 .'or the other statutes it Cited applied to the driver's 

license numbers: "Given what should be the s.elf-evident nature of redacting an 

individual's driver's license number, we decline your invitation to provide further and 

unnecessary explanation." Id. at 88. The city again warned it was "prepared to 

prosecute a declaratory judgment action decreeing that it [had] fully complied with 

[Koenig's] requests." Id. at 89 (citing Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 

174 P.3d 60 (2007)). 3 

The city filed suit and moved for summary judgment.4 Koenig filed a cross 

motion for summary judgment and argued the city had not met its burden to show the 

driver's license numbers were properly redacted under a specific exemption and the 

3 In Soter, 162 Wn.2d at 757, we held that under RCW 42.56.540, an agency can seek a judicial 

determiliation whether records are properly exempt, but "to impose the injunction [against 

release of the records], 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." 4 Even prior to the motions for summary judgment, the case went up on appeal. The first appeal 

concerned the trial court's order to compel Koenig to respond to discovery requests from the 

city. The Court of Appeals reversed the trial court in part, holding that the city could seek 

discovery under the PRA but that its request in this instance was not reasonably calculated to 

lead to the discovery of admissible evidence. City of Lakewood v, Koenig, 160 Wn. App. 883, 

250 P.3d 113 (2011). 

4 
City of Lakewood v. Koenig, No. 89648-8 

city also violated the PRA by failing to explain why driver's license numbers are 

exempt. Koenig argued he was entitled to attorney fees under RCW 42.56.550(4) for 

the violation of the brief explanation requirement regardless of whether the numbers 

were ruled exempt. 

The trial court granted the city's summary judgment motion, denied Koenig's 

motion,·and ruled that Koenig's claim against the city for violating the PRA by failing 

to provide a brief explanation was not a valid basis for liability. CP at 228-30 (Order 

on Cross Motions for Summary Judgment). Koenig appealed on the brief explanation 

issue. The Court of Appeals held the city violated the brief explanation requirement 

and Koenig was entitled to attorney costs and fees. City of Lakewood v. Koenig, 176 

Wn. App. 397, 309 P.3d 610 (2013). We granted the city's petition for review. City 

ofLakewoodv. Koenig, 179 Wn.2d 1022,320 P.3d 719 (2014). 

ANALYSIS 

The primary purpose of the PRA is to provide broad access to public records to 

ensure government accountability. Livingston v. Cedeno, 164 Wn.2d 46, 52, 186 P.3d 

1055 (2008). The legislature stated clearly that the people "do not give their public 

servants the right to decide what is good for the people to know and what is not good 

for them to know." LAWS OF 1992, ch. 139, § 2 (codified atRCW 42.56.030). The 

PRA contains no general exemptions from disclosure to protect individual privacy or 

vital government functions. Progressive Animal Welfare Soc. v. University of 

Washington, 125 Wn.2d 243, 258, 884 P.2d 592 (1994) (PAWS II) (citing In re 

5 
City of Lakewood v. Koenig, No. 89648-8 

Rosier, 105 Wn.2d 606, 621, 717 P.2d 1353 (1986) (Anderson, J., dissenting in part, 

concurring in part)). Rather, the legislature has crafted exemptions that are "narrowly 

tailored to specific situations in which privacy rights or vital governmental interests 

require protection." Resident Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 

434, 300 P.3d 376 (2013) (emphasis added). The PRA also provides that other 

statutes can exempt information from the disclosure mandates of the PRA. RCW 

42.56.070(1). 

Consistent with its purpose of disclosure, the PRA directs that its exemptions 

must be narrowly construed, RCW 42.56.030, and that "an agency must produce 

otherwise exempt records insofar as redaction renders any and all exemptions 

inapplicable." Resident Action Council, 177 Wn.2d at 433 (citing PAWS II, 125 

Wn.2d at 261); see RCW 42.56.210(1), .070. When an agency withholds or redacts 

records, its response "shall include a statement of the specific exemption authorizing 

the withholding of the record (or part) and a brief explanation of how the exemption 

applies to the record withheld." RCW 42.56.210(3); see PAWS II, 125 Wn.2d at 270. 

The purpose of the requirement is to inform the requester why the documents are 

being withheld and provide for meaningful judicial review of agency action. See 

PAWS 11, 125 Wn.2d at 270; Sanders v. State, 169 Wn.2d 827, 846, 240 P.3d 120 

(20 1 0) (noting that " [ c] laimed exemptions cannot be vetted for validity if they are 

6 
City of Lake-wood v. Koenig, No. 89648-8 

unexplained"). 5 

The plain language ofRCW 42.56.210(3) and our cases interpreting it are clear 

that an agency must identify '"with particularity'" the specific record or information 

being withheld and the specific exemption authorizing the withholding. Rental Hous. 

Ass'n ofPuget Soundv. City of Des Moines, 165 Wn.2d 525,537-38, 199 P.3d 393 

(2009) (emphasis added) (quoting PAWS II, 125 Wn.2d at 271 ); see alsoP A WS II, 

125 Wn.2d at 271 n.l8. In Rental Housing, for example, we concluded the city did 

not state a proper claim of exemption to trigger the PRA's one-year statute of 

limitations where its response letter generally characterized withheld documents but 

did not "specifically describ[ e] each withheld individual document and the basis for 

withholding each document." 165 Wn.2d at 529, 541. Additionally, the agency must 

provide sufficient explanatory information for requestors to determine whether the 

exemptions are properly invoked. Renta!Hous., 165 Wn.2d at 539 (quoting WAC 44-

. . 

14-04004(4)(b)(ii)); see also Sanders, 169 Wn.2d at 846. 

We find the city's response did not meet this standard. In its response to each 

request, the city either failed to cite a specific exemption or failed to provide any 

5 As a threshold matter, the city asks us to hold that Koenig waived any claim that it violated the 

brief explanation requirement. We decline to do so. The city argues that Koenig limited the 

issues before the trial court in his answer and that the trial court did not rule on the right to 

receive a response. However, Koenig clearly argued in his summary judgment motion that the 

city failed to provide an adequate explanation of claimed exemptions and asked for attorney fees. 

The trial court expressly ruled that Koenig's brief explanation violation claim was not a basis for 

liability. 

7 
City of Lakewood v. Koenig, No. 89648-8 

explanation for how a cited "other" statute exemption applied to the redacted driver's 

license numbers in the specific records produced. Consequently the burden was 

shifted to the requester to sift through the statutes cited by the city and parse out 

possible exemption claims. This was improper under the PRA. 

The level of detail necessary for a requestor to determine whether an exemption 

is properly invoked will depend upon both the nature of the exemption and the nature 

of the document or information. The majority of exemptions are categorical and 

exempt "without limit a particular type of information or record." Resident Action 

Council, 177 Wn.2d at 434 (citing as an example RCW 42.56.230(5), which exempts 

"debit card numbers"). Thus, when it is clear on the face of a record what type of 

information has been redacted and that type of information is categorically exempt, 

citing to a specific statutory provision may be sufficient. But for other exemptions, 

including the "other" statute exemptions cited by the city here, additional explanation 

is necessary to determine whether the exemption is properly invoked. See, e.g., 

Sanders, 169 Wn.2d at 846 (finding agency's response insufficient when it claimed 

the controversy exemption for numerous records without specifying details such as 

the controversy to which each record was relevant). 

In response to the first request, the city redacted a detective's driver's license 

number from what appear to be a municipal court docket and a citation notice issued 

to a Lakewood police detective for patronizing a prostitute. The city stated that the 

number was redacted pursuant to RCW 46.52.120 and .130, provisions outside the 

8 
City ofLakewood v. Koenig, No. 89648-8 

PRA that provide for the confidentiality of an individual's driving record kept by the 

department of motor vehicles but provide that the department may furnish the abstract 

of a person's driving record to certain entities under certain circumstances. While it 

may be that information is still protected once it is given to other goverrunent 

agencies, this is not obvious from the face of either statute. The city declined 

Koenig's request for an explanation and failed to provide any information that would 

link RCW 46.52.120 and .130 to the specific driver's license numbers redacted in 

each record held by the city. This explanation would be necessary to evaluate the 

city's claim for validity. 

In response to Koenig's second request, the city redacted the driver's license 

numbers of the detective, the victim, and witnesses from what appear to be a police 

repmi, a traffic collision report, and a handwritten note. The city plainly violated the 

PRA because it failed to identify a "specific exemption" authorizing redaction as 

required by RCW 42.56.210(3). The city simply cited to the PRA provision that 

defines privacy, RCW 42.56.050, and to RCW 42.56.240 (2005), which included a 

number of exemptions. Among other things, .240 exempted "investigative records" 

disclosure ofwhich would violate privacy, RCW 42.56.240(1), and identifying 

information about victims and witnesses that would jeopardize their life, safety, or 

property, RCW 42.56.240(2). The city later clarified its response as it related to the 

dates of birth of witnesses and victims, claiming that information was exempt 

pursuant to RCW 42.56.240(2), but the city did not specify whether it also intended to 

9 
City of Lakewood v. Koenig, No. 89648-8 

claim a specific exemption under .240 for driver's license numbers. The city repeated 

its citations to RCW 46.52.120 and .130 without explaining how they apply. 

In response to the third request, the city redacted a police officer's driver's 

license number from what appears to be a docket and repeated its citations to RCW 

46.52.120, .130, and .050 without explanation. 

The city augmented its response to include a claim of exemption under the 

FDPPA. However, the city failed to explain the source ofthe driver's license 

numbers in each record, which is necessary for a requester to make a threshold 

determination about whether the federal law applies. 

Koenig asks us to construe Sanders, 169 Wn.2d 827, as requiring a correct 

response to a records request. But our inquiry under the facts presented here does not 

tum on whether the explanation was correct, but rather on whether it provided 

sufficient explanatory information for requestors to determine whether the exemptions 

were properly invoked. It did not; the city's responses either failed to cite a specific 

exemption or failed to provide any explanation for how a cited "other" statute 

exemption applied to the redacted driver's license numbers in the specific records 

produced. 

Because the city's response did not meet the requirements of the PRA, we hold 

that Koenig is entitled to attorney fees. The plain language of the PRA provides that 

costs and reasonable attorney fees shall be awarded to a requester for vindicating "the 

10 
City ofLakewood v. Koenig, No. 89648-8 

right to receive a response." RCW 42.56.550( 4). 6 In Sanders, we rejected the State's 

argun:ient that the only remedy for the State's insufficient withholding index was to 

compel an explanation of the exemptions. 169 Wn.2d at 847. We found that 

interpretation ofRCW 42.56.550(4) would contravene the PRA's purpose because an 

agency would have "no incentive to explain its exemptions at the outset" and "[t]his 

forces requestors to resort to litigation, while allowing the agency to escape sanction 

of any kind." Id. (citing Spokane Research & Def Fundv. City ofSpokane, 155 

Wn.2d 89, 103~04, 117 P.3d 1117 (2005)). We decline to depart from Sanders. 

Moreover, under Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 

809-10,246 P.3d 768 (2011), attorney fees are available for a violation ofthe right to 

re<)eive a response regardless of whether records are improperly withheld. There, the 

Yakima Herald-Republic sought information about the expenditure of public funds for 

the criminal defense oftwo murder defendants. Id. at 781-82. In addition to 

intervening in the criminal case and challenging the court's order sealing attorney 

6 RCW 42.56.550(4) was amended in 2011 to remove the mandatory minimum daily penalty for 

a violation of a citizen's right to inspect or copy public records, LAWS OF 2011, ch. 273, § 1, but 

that portion of the provision is not at issue here. The relevant portion reads: 

!d. 

Any person who prevails against an agency in any action in the courts seeking the right to 

inspect or copy any public record or the right to receive a response to a public record 

request within a reasonable amount of time shall be awarded all costs, including 

reasonable attorney fees, incurred in connection with such legal action. 

11 
City ofLakewood v. Koenig, No. 89648-8 

billing records, the newspaper also filed a public records request with the county for 

all records of public funds spent for the defense. Id. at 783-85. We concluded billing 

records held by nonjudicial entities were subject to disclos-ure, and we remanded for a 

determination about whether nonjudicial entities actually held any. !d. at 805-08. 

Thus, while we declined penalties as premature, we awarded costs and reasonable 

attorney fees to the newspaper because the county's equivocal response violated the 

brief explanation requirement. !d. at 809. The same principles apply here. 

Accordingly, Koenig is entitled to an award of reasonable attorney fees, 

including fees on appeal, pursuant to RCW 42.56.550( 4) and RAP 18.1. 7 

----·---·----

7 The city's petition for review and supplemental brief ask us to hold that driver's license 

numbers are exempt under the PRA. City ofLakewood's Pet. for Review at 4, 16-20; Suppl. Br. 

of Pet'r at 15-18. We decline to reach this issue because it is not properly before us and because 

we do not have briefing from all the stakeholders who might have valuable insight into the issue. 

We note that there is tension between the PRA's mandate of disclosure and the efforts of 

agencies to protect personal identifying information, the disclosure of which can put citizens at 

risk for identity theft and other problems. As the Court of Appeals aptly noted: 

The PRA exists to ensure government transparency and accountability. RCW 

42.56.030. Allowing the release of a private citizen's personal identifying information 

exposes private citizens to the risk of harm such as identity theft without furthering this 

purpose. See Tacoma Pub. Library [v. Woessner,] 90 Wn. App. [205,] 221-22[, 951 P.2d 

357, 972 P.2d 932 (1998)] (disclosure of personal identifying information can be highly 

offensive because it "could lead to public scrutiny of individuals concerning information 

unrelated to any governmental operation"). The legislature has expressed obvious 

concern over the release of personal identifying information and recognized that the 

release of personal identifying information serves no legitimate purpose under the PRA. 

Accordingly, we believe that the failure to include an express PRA exemption that 

impedes the crime of identity theft and protects the release of personal identifying 

information appears to be an unfortunate oversight, but that it is up to the legislature, not 

the courts, to address. 

Koenig, 176 Wn. App. at 404 n.3. 

12 
City of Lakewood v. Koenig, No. 89648~8 

CONCLUSION 

Some records are exempt from disclosure under the PRA. Agencies 

withholding or redacting records must identify the specific exemptions they believe 

apply and provide a brief explanation as to why. We hold that the city of Lakewood 

violated this requirement and that Koenig is entitled to attorney costs and fees for 

vindicating his right to receive a response. We remand to the trial court for entry of 

an attorney fee award in accordance with this opinion. 

13 
City ofLakewood v. Koenig, No. 89648-8 

WE CONCUR: 

14 
City of Lakewood v. Koenig 

No. 89648-8 

MADSEN, C.J. ( dissenting)-The Public Records Act (PRA) grants costs and 

reasonable attorney fees for vindicating the "right to receive a response to a public record 

request within a reasonable time." RCW 42.56.550(4). The plain language of the statute 

simply entitles a person to receive a timely answer. Although we have interpreted 

"response" to include the right to receive a "brief explanation," Sanders v. State, 169 

Wn.2d 827, 848,240 PJd 120 (2010), the majority now expands "brief explanation" to 

mean that an agency must correctly justify its response when it redacts or withholds a 

document. The PRA does not support this result. 

Discussion 

The city stated that it redacted driver's license numbers from the documents it 

intended to provide and then cited to sp~cific statutes that it claimed supported the 

redactions. The majority holds this response insufficient because it cannot determine if 

the cited statutes actually support the redactions. Majority at 9. In other words, the 

majority holds the city's response insufficient because it cannot tell if the city is right. !d. 
No. 89648-8 

Madsen, C.J., idissenting 

The PRA, however, merely requires that the agency provide a "response," not a correct 

explanation. RCW 42.56.550(4), .210(3). 

The agency fulfilled its obligation to provide a brief explanation. In Sanders, we 

held the State's response insufficient when it withheld entire documents and claimed 

work product privilege under the PRA's controversy exemption. 169 Wn.2d at 847. We 

held the response insufficient because the State failed to give necessary information about 

what the records contained to evaluate the claim, including what controversy the records 

related to. ld. Essentially, the State explained why it withheld information-the 

controversy exemption-but failed to explain what information it actually withheld. See 

id. at 83 7, 846 (characterizing lack of details as merely identifying that a document 

exists). Here, unlike the State in Sanders, the city explained what information it actually 

withheld-driver's license numbers-and it explained why-the cited statutes. The 

requester in this case, unlike the requester in Sanders, can evaluate the exemptions and 

determine for himself the validity of the agency's action. Whether the city validly 

withheld the driver's license numbers, however, is a separate issue. 

Although the majority denies that a brief explanation must contain a correct 

response, the rule it articulates has this result. The majority states that the agency must 

provide explanatory information sufficient "to determine whether the exemptions are 

properly invoked." Majority at 7 (citing Rental Hous. Ass 'n of Puget Sound v. City of 

Des Moines, 165 Wn.2d 525, 539, 199 P.3d 393 (2009)). In other words, the sufficiency 

of a brief explanation now depends on whether the response allows the requester or a 

2 
No. 89648-8 

Madsen, C.J., dissenting 

court to determine that the agency invoked the correct exemption. In Rental Housing, we 

described the brief explanation as '"enough information for a requestor to make a 

threshold determination of whether the claimed exemption is proper."' 165 Wn.2d at 539 

(quoting WAC 44-14-04004(4)(b)(ii)). The majority transformed a threshold 

determination into an ultimate determination. So instead of providing enough 

information for the requester to make an initial determination about the appropriateness 

of the exemption, the agency must now provide enough information to prove it is right. 

The PRA does not put this burden on agencies, and neither should this court. 

When a requester doubts the validity of an agency's claimed exemption, the PRA directs 

the requester to seek clarification from the attorney general, not the agency. The PRA 

provides: 

Whenever a state agency concludes that a public record is exempt from 

disclosure and denies a person opportunity to inspect or copy a public 

record for that reason, the person may request the attorney general to 

review the matter. The attorney general shall provide the person with his or 

her written opinion on whether the record is exempt. 

RCW 42.56.530. 

The PRA already provides attorney fees when an agency wrongly withholds 

records. RCW 42.56.550(4). Under the majority, an agency must now pay attorney fees 

if it wrongly withhold records or if it correctly withholds records but fails to provide a 

correct explanation. I do not find this correct-explanation requirement in the statute, and 

I do not believe that we should create one. Instead, if the agency has failed to identify a 

record at all or has failed to either release a record or give its reason for withholding, 

3 
No. 89648-8 

Madsen, C.J., dissenting 

whether correct or incorrect, then attorney fees may be warranted. But where the agency 

has identified the records and given its reason for redacting or withholding the record, no 

attorney fees are independently warranted. Therefore, I dissent. 

4 
No. 89648-8 

Madsen, C.J., dissenting 

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