# /FILE~ IN CLERKI OFFICI "'-· 1UPREMECOURT,81'R1Oil'WIIIIINQ'ftM DATE 

### DEC 1 12014 \

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON CITY OF LAKEWOOD, A Municipal ) Corporation ofthe State ofWashington, ) ) Petitioner, ) ) 

### v. ) ) DAVID KOENIG, individually, ) ) Respondent. ) ·-------) No. 89648-8

EnBanc
Filed 

### DEC 1 12014
GONZALEZ, J.-OurPublic Records Act (PRA), chapter 42.56 RCW, provides attorney fees to those who mustresortto 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 arequestor's right to receive a response when it withholds or redacts public records without articulating a specific applicable exemption and providing a "briefexplanation ofhow the exemption applies to the record withheld." RCW 42.56.210(3). We are asked to decide whetherthe city ofLakewood's explanation for redacting driver's license numbers from records produced for David Koenig was inadequate and, ifso, whether Koenig is entitled to attorney fees. We hold that the city's response was inadequate and Koenig is entitled to fees.City of Lakewoodv. Koenig, No. 89648-8
FACTS In October 2007, Koenig requested three sets ofrecords from the city of Lakewood. Herequested (1) records about the arrest and prosecution ofa Lakewood police detective in January 2005 for patronizing a prostitute; (2) records about a November 2006 auto accident in the city ofFife, where a Fife police officer struck a pedestrian withhis patrol car and the Lakewood Police Department assisted with the investigation; and (3) records about Tacomapolice officer Michael Justice's 1998 arrest and subsequentprosecution onfourth degree assault charges. InNovember 2007, the city advised Koenig by letter that responsive records
were available for review and pickup. The city redacted, among otherthings, driver's license numbers from various types ofdocuments it produced. The cityjustifiedthe redaction ofdriver's license numbers by citation to statutes: Records pertaining to the arrest andprosecution ofa LakewoodPolice Detective on or around 1125/05 [The detective's] Driver's License numberhas beenredacted pursuant to RCW 46.52.120 and RCW46.52.130.

Records Pertaining to Fife Collision. The City is making available the investigation about an auto accidentthat occurred in the City ofFife in November of2006. The City has redactedthe dates ofbirth, 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 pursuantto RCW 42.56.050, RCW 42.56.240, RCW 46.52.120, and RCW46.52.130.

2City of Lakewoodv. Koenig, No. 89648-8

Records Pertaining to the Arrest and Prosecution ofMichael Justice
.

. . .The driver's license number ofMichael Justice hasbeenredactedpursuant to RCW42.56.050, 46.52.120 and 46.52.130.
Clerk's Papers (CP) at 75-76. The city's letter advised Koenig: "[U]nlessyouhave notified the City- in writing- by the close ofbusiness on December 21, 2007, that its response satisfies yourrequests, the City is prepared to take appropriate legal action to determine that ithas fully complied with each ofthese 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 4·2.56.240 1 and to clarify whether the it was also claiming driver's license numbers
were exemptunder the federal Driver's Privacy Protection Act of 1994 (FDPPA), 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 supplementedthebasis for its redaction ofdriver's license numbers to include the FDPPA and

### Reno, 528 U.S.

1 Former RCW 42.56.240 (2005), in effect atthe time ofthe city'sresponse, contained five subsections. Seven subsections have sincebeen added through numerous legislative amendments, butnone ofthe amendmentshave altered subsections (1)-(5). See LAWS OF2013, 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 RCW42.56.240(6)-(12)), 2 The cityinitiated suit while Koenig andthe citywere already engaged inpendinglitigation. In that other case, the city also redacted driver's license numbers and eventually cited to theFDPPA and former RCW46.12.390 (2005). 3City ofLakewoodv. Koenig, No. 89648-8 141. The city said that it redacted witness and victim dates ofbirth pursuantto RCW 42.56.240(2) because "the date ofbirth together with a name has the potential to link a particular individual with aparticular identity thus creating the potential to endanger
an individual's life, physical safety or property." CP at 87-88. Butthe city declined to explainhowRCW 42.56.240.'or the other statutes it Cited applied to the driver's license numbers: "Givenwhat should be the s.elf-evident nature ofredacting an individual's driver's license number, we decline your invitationto provide further and unnecessary explanation."

### Id. at 88. The city again warned it was "preparedto prosecute a declaratoryjudgment action decreeing that it [had] fully compliedwith [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 summaryjudgment.4 Koenig filed a cross motion for summaryjudgment and argued the city hadnot 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 ajudicial determiliation whether records are properly exempt, but "to impose the injunction [against release ofthe records], the trial court must find that a specific exemption applies andthat disclosure would not be inthe public interest and would substantially and irreparably damage a person or a vital government interest." 4 Even prior to the motions for summaryjudgment, the case went up on appeal. The first appeal concernedthe trial court's order to compel Koenig to respond to discovery requests from the city. The Court ofAppeals reversed the trial court inpart, holding thatthe city could seek discovery under the PRA butthat its request in this instance was notreasonably calculatedto lead to the discovery ofadmissible evidence. City of Lakewoodv, Koenig, 160 Wn. App. 883, 250 P.3d 113 (2011). 4City of Lakewoodv. Koenig, No. 89648-8 city also violated the PRAby 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 ofthe briefexplanation requirement regardless ofwhether the numbers
were ruled exempt. The trial court granted the city's summaryjudgmentmotion, denied Koenig's motion,·and ruled that Koenig's claim against the city for violating the PRA by failing to provide a briefexplanation was not a valid basis for liability. CP at 228-30 (Order
on Cross Motions for Summary Judgment). Koenig appealed on the briefexplanation issue. The Court ofAppeals held the city violated the briefexplanationrequirement and Koenig was entitled to attorney costs and fees. City of Lakewoodv. Koenig, 176 Wn. App. 397, 309 P.3d 610 (2013). We granted the city's petition for review. City ofLakewoodv. Koenig, 179 Wn.2d 1022,320P.3d 719 (2014). ANALYSIS The primarypurpose ofthe 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 theirpublic 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 atRCW42.56.030). The PRA contains no general exemptions from disclosure to protectindividual privacy or vital government functions. ProgressiveAnimal Welfare Soc. v. University of Washington, 125 Wn.2d 243, 258, 884 P.2d 592 (1994) (PAWS II) (citingIn re 5City of Lakewoodv. Koenig, No. 89648-8 Rosier, 105 Wn.2d 606, 621, 717 P.2d 1353 (1986) (Anderson, J., dissenting inpart, concurring in part)). Rather, the legislature has crafted exemptions that are "narrowly tailored to specific situations inwhich privacy rights orvital governmental interests requireprotection." ResidentAction Council v. Seattle Hous. Auth., 177 Wn.2d417, 434, 300 P.3d 376 (2013) (emphasis added). The PRA also provides that other statutes can exempt information from the disclosure mandates ofthe PRA. RCW 42.56.070(1). Consistent with its purpose ofdisclosure, thePRA directs that its exemptions must be narrowly construed, RCW42.56.030, and that "an agency must produce otherwise exemptrecords insofar as redactionrenders any and all exemptions inapplicable." ResidentAction Council, 177 Wn.2d at 433 (citingPAWSII, 125 Wn.2d at 261); see RCW 42.56.210(1), .070. When an agency withholds orredacts records, its response "shall include a statement ofthe specific exemption authorizing the withholding ofthe record (orpart) and a briefexplanation ofhow the exemption applies to the record withheld." RCW 42.56.210(3); seePAWSII, 125 Wn.2d at 270. Thepurpose ofthe requirement is to inform the requester why the documents are being withheld and provide for meaningfuljudicialreview ofagency action. See PAWS11, 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 cannotbe vetted for validity ifthey are

6City of Lake-woodv. Koenig, No. 89648-8 unexplained"). 5 The plain language ofRCW42.56.210(3) and our cases interpreting 

### itare clear that an agency must identify '"withparticularity'" the specific record or information beingwithheld and the specific exemption authorizing the withholding. RentalHous. Ass'n ofPugetSoundv. City of Des Moines, 165 Wn.2d 525,537-38, 199 P.3d 393 (2009) (emphasis added) (quotingPAWSII, 125 Wn.2d at 271); see alsoP AWS II, 125 Wn.2d at 271 n.l8. InRentalHousing, for example, we concluded the city did not state a proper claim ofexemption to trigger the PRA's one-year statute of limitations where its response letter generally characterizedwithheld 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

5As a threshold matter, the city asks us to hold that Koenig waived any claim that it violated the briefexplanationrequirement. 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 onthe right to receive a response. However, Koenig clearly argued in his summaryjudgmentmotion that the city failed to provide an adequate explanation ofclaimed exemptions and asked for attorney fees. The trial court expressly ruled that Koenig's briefexplanation violation claim was not a basis for liability.
7City of Lakewoodv. Koenig, No. 89648-8 explanation for how a cited "other" statute exemptionappliedtotheredacted driver's license numbers in the specific records produced. Consequently the burden was shifted to the requester to siftthroughthe statutes cited by the city and parse out possible exemption claims. This was improperunder the PRA. The level ofdetail necessary for a requestor to determine whether an exemption is properly invoked will depend upon boththe nature ofthe exemption and the nature ofthe document or information. The majority ofexemptions are categorical and exempt "without limit a particular type ofinformation or record." 

### ResidentAction 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 ofa record what type of information has beenredacted and that type ofinformation is categorically exempt, citing to a specific statutory provision may be sufficient. But for other exemptions, includingthe "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 citationnotice issued to a Lakewoodpolice detective for patronizing a prostitute. The city stated thatthe number was redacted pursuant to RCW46.52.120 and .130, provisions outside the 8City ofLakewoodv. Koenig, No. 89648-8 PRAthat provide for the confidentiality ofan individual's driving record kept by the department ofmotorvehicles butprovide that the department may furnish the abstract ofa person's driving record to certain entities under certain circumstances. While it may be that information is still protected once it is givento other goverrunent agencies, this is not obvious from the face ofeither 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 eachrecord held by the city. This explanation would be necessary to evaluatethe city's claim for validity. Inresponse to Koenig's second request, the city redacted the driver's license numbers ofthe detective, the victim, and witnesses from what appear to be a police repmi, a traffic collisionreport, and ahandwrittennote. The cityplainly violated the PRA because it failed to identify a "specific exemption" authorizing redaction as required by RCW42.56.210(3). The city simply cited to the PRAprovisionthat defines privacy, RCW42.56.050, and to RCW 42.56.240 (2005), which included a number ofexemptions. Among otherthings, .240 exempted "investigative records" disclosure ofwhichwould violate privacy, RCW42.56.240(1), and identifying information about victims and witnesses that wouldjeopardize their life, safety, or property, RCW 42.56.240(2). The city later clarified its response as it relatedto the dates ofbirth ofwitnesses and victims, claiming that information was exempt pursuant to RCW 42.56.240(2), butthe city did not specify whether it also intended to 9City of Lakewood v. Koenig, No. 89648-8 claim a specific exemptionunder .240 for driver's license numbers. The city repeated its citations to RCW46.52.120 and .130 without explaining howthey apply. Inresponse 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 ofexemptionunder the FDPPA. However, the city failed to explainthe 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 explanationwas correct, butrather on whether it provided sufficient explanatory information for requestors to determine whether the exemptions
wereproperly invoked. Itdid 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. Becausethe city's response did not meet the requirements ofthe PRA, we hold that Koenig is entitledto attorney fees. The plain language ofthe PRAprovides that costs andreasonable attorney fees shall be awarded to a requester for vindicating "the

10City ofLakewoodv. Koenig, No. 89648-8 right to receive a response." RCW42.56.550(4). 6 InSanders, we rejected the State's argun:ient that the only remedy for the State's insufficient withholding index was to compel an explanation ofthe exemptions. 169 Wn.2d at 847. We found that interpretation ofRCW42.56.550(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 resortto litigation, while allowing the agency to escape sanction ofany kind." Id. (citing Spokane Research & DefFundv. 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 oftheright to re<)eive a response regardless ofwhether records are improperly withheld. There, the YakimaHerald-Republic sought information about the expenditure ofpublic 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 ofa citizen's right to inspect or copy public records, LAWS OF 2011, ch. 273, § 1, but that portion ofthe provision is not at issue here. The relevant portionreads:

!d. Any person who prevails against an agency in any action inthe 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 oftime shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action.

11City ofLakewoodv. Koenig, No. 89648-8 billing records, the newspaper also filed a public records request with the county for all records ofpublic funds spent for the defense. Id. at 783-85. We concluded billing records held bynonjudicial entities were subject to disclos-ure, and weremanded for a determination about whethernonjudicial 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 violatedthe briefexplanation requirement. 

### !d. at 809. The same principles apply here. Accordingly, Koenig is entitled to an award ofreasonable attorney fees, including fees on appeal, pursuantto RCW 42.56.550(4) and RAP 18.1. 7

----·---·---- 7The city's petition for review and supplemental briefask us to hold that driver's license numbers are exemptunder the PRA. City ofLakewood's Pet. for Review at 4, 16-20; Suppl. Br. ofPet'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 ofdisclosure and the efforts of agencies to protect personal identifying information, the disclosure ofwhich can put citizens at risk for identity theft and other problems. As the Court ofAppeals aptly noted: The PRA exists to ensure government transparency and accountability. RCW 42.56.030. Allowing the release ofa private citizen's personal identifying information exposes private citizens to the risk ofharm 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 ofpersonal identifying information can be highly offensive because it "could lead to public scrutiny ofindividuals concerning information unrelated to any governmental operation"). The legislature has expressed obvious concern over the release ofpersonal identifying information and recognized that the release ofpersonal identifying information serves no legitimate purpose underthe PRA. Accordingly, we believe that the failure to include an express PRA exemptionthat impedes the crime ofidentity theft and protects the release ofpersonal identifying information appears to be an unfortunate oversight, butthat it is up to the legislature, not the courts, to address. Koenig, 176 Wn. App. at 404 n.3.
12City of Lakewoodv. 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 briefexplanation as to why. We hold thatthe city ofLakewood 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 withthis opinion.

13City ofLakewoodv. Koenig, No. 89648-8



### WE CONCUR:

14City of Lakewoodv. Koenig

No. 89648-8 MADSEN, C.J. (dissenting)-ThePublic Records Act (PRA) grants costs and reasonable attorney fees for vindicating the "rightto receive a response to apublic record request within a reasonable time." RCW42.56.550(4). The plain language ofthe statute simply entitles aperson to receive a timely answer. Although we have interpreted "response" to include the right to receive a "briefexplanation," Sanders v. State, 169 Wn.2d 827, 848,240 PJd 120 (2010), the majority now expands "briefexplanation" to
mean that an agency must correctlyjustify 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 insufficientbecause 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 cannottell ifthe 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 briefexplanation. In Sanders, we held the State's response insufficientwhen it withheld entire documents and claimed workproductprivilege 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-butfailed to explain what information it actually withheld. See id. at 837, 846 (characterizing lack ofdetails 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 himselfthe validity ofthe agency's action. Whether the city validly withheld the driver's license numbers, however, is a separate issue. Although the majority denies that a briefexplanation 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 (citingRentalHous. Ass 'n of PugetSoundv. City of DesMoines, 165 Wn.2d 525, 539, 199 P.3d 393 (2009)). In otherwords, the sufficiency ofa briefexplanation now depends on whether the response allows the requester or a

2No. 89648-8 Madsen, C.J., dissenting
court to determine that the agency invoked the correct exemption. InRentalHousing, we described thebriefexplanation as '"enough information for arequestorto make a threshold determination ofwhether 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 ofproviding enough information for the requester to make an initial determination aboutthe appropriateness ofthe exemption, the agency must nowprovide enough information to prove it is right. The PRA does not putthis burden on agencies, and neither should this court. When a requester doubts the validity ofan 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 apublic record is exempt from disclosure and denies aperson opportunity to inspect or copy apublic record for that reason, the person may request the attorney general to review the matter. The attorney general shall providethe person with his or her written opinion on whether the record is exempt. RCW42.56.530. The PRA already provides attorney fees when an agency wrongly withholds records. RCW42.56.550(4). Under the majority, an agency must now pay attorney fees ifit wrongly withhold records or ifit correctly withholds records but fails to provide a correct explanation. I do not find this correct-explanation requirement in the statute, and I do notbelieve that we should create one. Instead, ifthe agency has failed to identify a record at all or has failed to eitherrelease a record or give its reason for withholding,

3No. 89648-8 Madsen, C.J., dissenting
whether correct or incorrect, then attorney fees may be warranted. Butwhere 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.

4No. 89648-8 Madsen, C.J., dissenting • ,, 1

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