[No. 77253-3. En Banc.]
Argued March 16, 2006. Decided November 15, 2007.
[1] Open Government — Public Disclosure — Judicial Review — Appellate Review — Role of Appellate Court. Under the de novo standard of former RCW 42.17.340(3) (1992) for judicial review of an agency action taken or challenged under the public disclosure act (former RCW 42.17.250-.348 (2003)), an appellate court stands in the same position as the trial court. [2] Open Government — Public Disclosure — Exemptions — Burden of Proof — In General. A government agency claiming that a document is exempt from the public disclosure requirement of former RCW 42.17.260(1) (1997) has the burden of proving that the requested document falls within the scope of a specific statutory exemption. [3] Open Government — Public Disclosure — Exemptions — Construction — Narrow Construction — Full Effect to Statutory Words. A court fulfills the directive of former RCW 42.17.251 (1992) to narrowly construe exemptions under the public disclosure act (former RCW 42.17.250-.348 (2003)) by giving full effect to the words in the statutory exemption. [4] Statutes — Construction — Authority — Final Authority — Supreme Court. The Supreme Court has the ultimate authority to determine the meaning and purpose of a statute. [5] Statutes — Construction — Meaning of Words — Absence of Statutory Definition — Resort to Dictionary. An unambiguous statutory term that the statute does not define is given is plain and ordinary meaning as determined from a dictionary. [6] Open Government — Public Disclosure — Exemptions — Files Maintained for Students, Health Care Recipients, and Welfare Recipients — "Personal" Information — What Constitutes. For purposes of former RCW 42.17.310(1)(a) (2003), which exempts from public disclosure "[p]ersonal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients," "personal" means "information peculiar or proper to private concerns." [7] Schools — Open Government — Public Disclosure — Exemptions — Files Maintained for Students, Health Care Recipients, and Welfare Recipients — Information in Student File — Scope — Test. Information in a student file is exempt from disclosure under former RCW 42.17.310(1)(a) (2003) only if it is (1) "personal" and (2) "maintained for students." [8] Schools — Open Government — Public Disclosure — Exemptions — Files Maintained for Students, Health Care Recipients, and Welfare Recipients — Information in Student File — Scope — Examples. Former RCW 42.17.310(1)(a) (2003), which exempts from public disclosure personal information in files maintained for students in public schools, contemplates the protection of material in a public school student's permanent file, such as the student's grades, standardized test results, assessments, psychological or physical evaluations, class schedule, address, telephone number, and Social Security number, and other similar records. [9] Schools — Open Government — Public Disclosure — Exemptions — Files Maintained for Students, Health Care Recipients, and Welfare Recipients — Information in Student File — Scope — Public School Bus Student Surveillance Videotape. Former RCW 42.17.310(1)(a) (2003), which exempts from public disclosure personal information in files maintained for students in public schools, does not exempt from disclosure a surveillance videotape of public school students while on board a public school bus, even if the videotape is placed in a location designated as a student's file or is used as the basis for disciplining a student. The inherent character of the videotape as a surveillance record used for maintaining security and safety on the school bus cannot be changed simply by placing the videotape in a student's file or by using the videotape as an evidentiary basis for disciplining a child. [10] Open Government — Public Disclosure — Attorney Fees — Prevailing Party — Question of Law or Fact. Whether a plaintiff prevails in an action to compel the disclosure of public records and is entitled to an award of attorney fees under RCW 42.17.340(4) is a legal question of whether the records should have been disclosed on request. SANDERS, CHAMBERS, and J.M. JOHNSON, JJ., concur by separate opinion; FAIRHURST and MADSEN, JJ., dissent in part by separate opinion. Nature of Action: The parents of a public school student who was involved in a fight with another student on a school bus sought to enforce a public disclosure request to obtain a copy of a surveillance videotape showing the fight. The plaintiffs also sought attorney fees, costs, and penalties under the public disclosure act. Superior Court: The Superior Court for Cowlitz County, No. 04-2-00419-6, Stephen M. Warning, J., on April 29, 2004, entered a judgment in favor of the school district, ruling that the videotape is exempt from public disclosure under a statute protecting student records. Court of Appeals: The court affirmed the judgment at 127 Wn. App. 526 (2005), holding that the videotape is exempt from public disclosure as a statutorily protected student record. Supreme Court: Holding that the videotape is not a student record exempt from public disclosure, the court reverses the decision of the Court of Appeals and the judgment and remands the case for further proceedings. James K. Morgan-, for petitioners. Clifford D. Foster, Jr.-, and Lisa M. Worthington-Brown- (of Dionne & Rorick), for respondent. Michele L. Earl-Hubbard- (of Allied Law Group, LLC) on behalf of Allied Daily Newspapers of Washington, Washington State Association of Broadcasters, and Washington Coalition for Open Government, amici curiae. Douglas B. Klunder- on behalf of American Civil Liberties Union of Washington, amicus curiae. En Banc ¶1 OWENS, J. — A surveillance videotape installed on a public school bus recorded an altercation between two students. When parents Richard and Ginger Lindeman (Lindemans) sought access to the videotape through a public disclosure request, Kelso School District No. 458 (District) denied the request on the basis that the videotape was exempt under former RCW 42.17.310(1)(a) (2003) FACTS ¶2 On October 8, 2003, a surveillance video camera installed on a public school bus recorded an altercation between two elementary school students. On the same day, the District allowed the Lindemans, parents of one of the students, to view the videotape of the altercation. Thereafter, the Lindemans sent a letter to the District requesting a copy of the videotape. The District denied the request on the basis that the videotape was exempt from public disclosure. The Lindemans sent a formal request seeking disclosure of the videotape under the former public disclosure act (PDA), chapter 42.17 RCW, recodified as chapter 42.56 RCW (LAWS OF 2005, ch. 274). The District again denied the request. ¶3 The Lindemans subsequently filed an action in Cowlitz County Superior Court, alleging the District violated the PDA by failing to disclose the videotape. The Lindemans sought an order requiring the District to disclose the videotape and an award of attorney fees, costs, and penalties under the PDA. After holding a show cause hearing, the trial court held that the videotape was exempt from disclosure under the PDA. The trial court reached this conclusion after finding that "[t]he school bus surveillance video tape contains information that would allow a viewer to identify a student" and "[t]he tape was maintained by the district for potential discipline." Clerk's Papers at 91. Accordingly, the court dismissed the Lindemans' claim and awarded costs to the District. The Court of Appeals affirmed. Lindeman v. Kelso Sch. Dist. No. 458, 127 Wn. App. 526, 111 P.3d 1235 (2005). We granted review. Lindeman v. Kelso Sch. Dist. No. 458, 156 Wn.2d 1006, 132 P.3d 146 (2006). ISSUE ¶4 Did the District satisfy its burden of establishing that former RCW 42.17.310(1)(a) exempts the surveillance videotape from public disclosure? ANALYSIS A. Standard of Review B. The Student File Exemption ¶7 The parties do not dispute that the videotape is a "public record" and the District is an "agency" within the meaning of the PDA. Thus, the District must disclose the videotape unless a statutory exemption applies. The District refused the Lindemans' disclosure request under the student file exemption, which exempts from disclosure "[p]ersonal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients." Former RCW 42.17.310(1)(a). [T]his tape is not in a file maintained for students. It's not a student record. It's a surveillance tape. They might have put it in the file (but we've heard that they didn't), but that would not, in and of itself, have covered it under the exemption. So it never should have been exempt in the first place. TVW, Washington State's Public Affairs Network, Wash. State Supreme Court oral argument, Lindeman v. Kelso Sch. Dist. No. 458, No. 77253-3 (Mar. 16, 2006), audio recording available at ¶13 Further undermining the credibility of any later claim that the videotape was a document maintained in the student's file is the fact that the District permitted the Lindemans to view the videotape on the evening of the incident. Were the videotape actually a record in the student's file, the District would have immediately recognized it as such and would not have shared it absent a court order or subpoena or the consent of the student's parent or guardian. See RCW 28A.605.030; RCW 28A.600.475; 20 U.S.C. § 1232g(b)(2). ¶14 Even assuming arguendo that the videotape constituted "personal information" within the meaning of the student file exemption, the District failed to satisfy its burden of showing the videotape was "in any files maintained for students." Thus, we conclude that the videotape was not, and could not have been, legally withheld as a student file document under former RCW 42.17.310(1)(a). C. Attorney Fees, Costs, and Penalties CONCLUSION ¶16 The surveillance videotape of students from a camera on a public school bus is exempt under the student file exemption only if the District establishes the videotape is both "personal information" and "in any files maintained for students." We reverse the Court of Appeals and remand the matter to the trial court for entry of an order granting the Lindemans' disclosure request and awarding attorney fees, costs, and discretionary penalties pursuant to former RCW 42.17.340(4). ALEXANDER, C.J., and C. JOHNSON, BRIDGE, and J.M. JOHNSON, JJ., concur. ¶17 SANDERS, J. (concurring) — I concur in the majority except insofar as it claims this videotape of students fighting in a crowded school bus is " 'personal information.' " Rather this conduct was " 'public or general,' " majority at 5, and thus does not meet the majority's own definition. See Dawson v. Daly, 120 Wn.2d 782, 796-99, 845 P.2d 995 (1993). CHAMBERS and J.M. JOHNSON, JJ., concur with SANDERS, J. ¶18 FAIRHURST, J. (concurring in part and dissenting in part) — The public disclosure act (PDA) exempts from public disclosure public records containing "[p]ersonal information in any files maintained for students in public schools." Former RCW 42.17.310(1)(a) ¶19 I agree with the majority that Webster's Third New International Dictionary provides the appropriate definition for "personal" in "personal information" as used in the student file exemption. State v. Sullivan, 143 Wn.2d 162, 175, 19 P.3d 1012 (2001) (absent a controlling statutory definition, the court will give a term its plain and ordinary meaning as ascertained from a standard dictionary, while avoiding unlikely, absurd, or strained consequences). Thus, "personal information" in the student file exemption encompasses information relating to, or affecting, a particular individual, or information associated with private concerns, or information that is not public or general. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1686 (2002). ¶20 The majority properly rejects the Lindemans' contention that the definition of "personal" should be constrained to a mere portion of Webster's meaning—to just peculiar or proper to private concerns, not public or general. Id. Such a limited definition would equate "personal information" with private information and render superfluous the explicit privacy language present in former RCW 42.17.310(1)(b) (2003), reenacted and amended at RCW 42.56.230(2) (LAWS OF 2005, ch. 274, § 403). ¶21 I also agree with the majority that the student file exemption can be construed narrowly, in compliance with the directive of the PDA, by recognizing that it "does not exempt any and all personal information—it only exempts personal information 'in any files maintained for students in public schools.' " Majority at 5 (emphasis added) (quoting former RCW 42.17.310(1)(a)). The relatively broad class of personal information is thereby reduced to only that information displaying the particular, identified characteristic of being maintained for students. In effect, the personal information exempt from disclosure is limited to that kept by schools for purposes intrinsically connected with the students themselves, rather than for more general purposes. ¶22 However, I dissent from the majority's holding that the student file exemption does not apply to the videotape in this case. A public school bus surveillance videotape capturing an altercation between students could be "[p]ersonal information in any files maintained for students in public schools." Former RCW 42.17.310(1)(a). Certainly, as I explain below, the student file exemption does not manifestly exclude that possibility. ¶23 First, the majority's construction of the phrase " 'files maintained for students in public schools' " reads into the student file exemption a limitation not enacted by the voters. Majority at 5. The majority depicts the student file exemption as "contemplat[ing] the protection of material in a public school students' permanent file." Id. at 5. The majority represents that "permanent file" materials include "a student's grades, standardized test results, assessments, psychological or physical evaluations, class schedule, address, telephone number, Social Security number, and other similar records." Id. at 6. However, the majority's characterization of these so-called "permanent files" is beside the point, because the student file exemption states that it applies to "any files maintained for students," not just permanent ones. Former RCW 42.17.310(1)(a) (emphasis added). ¶24 When interpreting a statute enacted through the initiative process, as was the PDA, courts attempt to "ascertain the collective intent of the voters who, acting in their legislative capacity, enacted the measure." Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2001). When the voters have chosen not to include certain language, courts do not add words or clauses to the statute but instead assume the voters " 'mean[t] exactly what [the statute] says.' " State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003) (quoting Davis v. Dep't of Licensing, 137 Wn.2d 957, 964, 977 P.2d 554 (1999)). The voters directed that the student file exemption encompass "any files maintained for students." Former RCW 42.17.310(1)(a) (emphasis added). The majority's limitation of the student file exemption to only records that would be kept in students' permanent files is unwarranted. ¶25 Second, the majority errs in concluding that the videotape, because it is from a surveillance camera, "differs significantly from the type of record that schools maintain in students' personal files." Majority at 6. The videotape's inherent character as a record is not defined by the technology that produced it. A " '[p]ublic record' " can be "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." ¶26 In this case, the District "retained this tape solely for disciplinary purposes; otherwise, it would have been taped over as was the District's normal procedure." Lindeman, 127 Wn. App. at 529, ¶ 1. In other words, this videotape was retained specifically because it contained information documenting an altercation between students. As a record, the videotape is therefore analogous to other District writings documenting student altercations, for example, written descriptions or still photographs. Whether the District keeps such records, and in particular, kept the videotape in question "in any files maintained for students" is a question of fact that I believe this court cannot resolve based on the record before us. Former RCW 42.17.310(1)(a). ¶27 Third and finally, I disagree that if "the videotape [were] actually a record in the student's file, the District would have immediately recognized it as such and would not have shared it absent a court order or subpoena or the consent of the student's parent or guardian." Majority at 7. As the volume of PDA-associated litigation demonstrates, the PDA does not provide the crystal clarity the majority ascribes to it. The fact that the District permitted the Lindemans, parents of one of the students involved in the altercation, to view the videotape on the evening of the incident should not be dispositive of whether the videotape is exempt under the student file exemption. ¶28 Consequently, for the reasons discussed above, I cannot join in the majority's decision that the videotape in this case fails to satisfy the student file exemption. I would remand this matter to the trial court for a determination of whether, and to what extent, the information in the videotape is, in fact, "[p]ersonal information" that is "in any files maintained for students in public schools." Former RCW 42.17.310(1)(a). MADSEN, J., concurs with FAIRHURST, J.