Opinion Information Sheet
| Docket Number: | 82288-3 |
| Title of Case: | City of Federal Way v. Koenig |
| File Date: | 10/15/2009 |
| Oral Argument Date: | 06/09/2009 |
| Appeal from King County Superior Court | |
| Docket No: | 08-2-21328-5 |
| Judgment or order under review | |
| Date filed: | 09/24/2008 |
| Judge signing: | Honorable Richard F McDermott |
| Gerry L. Alexander | Signed Dissent | |
| Charles W. Johnson | Signed Majority | |
| Barbara A. Madsen | Did Not Participate | |
| Richard B. Sanders | Did Not Participate | |
| Tom Chambers | Signed Majority | |
| Susan Owens | Majority Author | |
| Mary E. Fairhurst | Signed Majority | |
| James M. Johnson | Signed Majority | |
| Debra L. Stephens | Dissent Author | |
| Kevin M. Korsmo, Justice Pro Tem. | Concurrence Author | |
| Joel M. Penoyar, Justice Pro Tem. | Signed Majority |
Counsel for Appellant(s) | |
| William John Crittenden | |
| Attorney at Law | |
| 927 N Northlake Way Ste 301 | |
| Seattle, WA, 98103-3406 | |
Counsel for Respondent(s) | |
| Ramsey E Ramerman | |
| n/a | |
| 10627 117th Pl Ne | |
| Kirkland, WA, 98033-5047 | |
| P. Stephen Dijulio | |
| Foster Pepper PLLC | |
| 1111 3rd Ave Ste 3400 | |
| Seattle, WA, 98101-3264 | |
Amicus Curiae on behalf of Attorney General | |
| James Kendrick Pharris | |
| Attorney at Law | |
| Ofc Of Atty General | |
| Po Box 40100 | |
| Olympia, WA, 98504-0100 | |
| Alan D. Copsey | |
| Office of the Attorney General | |
| Po Box 40100 | |
| Olympia, WA, 98504-0100 | |
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CITY OF FEDERAL WAY, a Washington )
municipal corporation, ) No. 82288-3
)
Respondent, ) En Banc
)
v. )
)
DAVID KOENIG, a Washington State )
resident, )
)
Appellant. ) Filed October 15, 2009
)
Owens, J. -- Washington?s Public Records Act (PRA), chapter 42.56 RCW,
gives the public access to the public records of state and local agencies, with the
laudable goals of governmental transparency and accountability. This case requires us
to consider the extent to which the PRA applies to the judiciary and judicial records.
We previously considered this issue in Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54
(1986), where we held that the PRA does not apply to court case files because the
judiciary is not included in the PRA?s definition of ?agency.? Id. at 305-06. We
conclude that Nast continues to stand for the principle that the PRA does not apply to
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82288-3
the judiciary and that the appellant has not demonstrated a compelling reason to
overturn Nast. Under the doctrine of stare decisis, we will overturn precedent only if it
is incorrect and harmful and appellant has failed to demonstrate either. Thus, this
court affirms the trial court and holds that the PRA does not apply to the judiciary.
FACTS
In February 2008, David Koenig requested all public records related to the
resignation of Federal Way Municipal Court Judge Colleen Hartl, including all
correspondence to and from presiding Federal Way Municipal Court Judge Michael
Morgan. In response, the city of Federal Way (City) provided 183 pages of documents
but it refused to provide correspondence to and from Judge Morgan, asserting that the
court was not subject to the PRA under Nast. Koenig persisted in his requests, arguing
that Nast was wrongly decided and did not apply in this case. In June 2008, the City
filed for an injunction affirming that the municipal court was not subject to the PRA.
Koenig filed a cross-motion for summary judgment, asking the trial court to find that
the PRA did apply to the municipal court and that the City had violated the PRA by
not releasing the requested documents.
In August 2008, Koenig made an additional public records request for a number
of records, including documents related to job-related exemptions from jury duty and
the appointment of pro tempore judges. Again, the City provided a number of
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82288-3
responsive documents but withheld those documents it classified as court documents
and therefore not subject to the PRA. In September 2008, the trial court granted the
City?s motion and held that the municipal court is not subject to the PRA under Nast.
Koenig appealed that decision directly to this court.
STANDARD OF REVIEW
We review issues of statutory meaning de novo. State v. Schultz, 146 Wn.2d
540, 544, 48 P.3d 301 (2002). We also review challenges to agency actions under the
PRA de novo. Soter v. Cowles Publ?g Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007).
The PRA must be ?liberally construed and its exemptions narrowly construed? to
ensure that the public?s interest is protected. RCW 42.56.030; Livingston v. Cedeno,
164 Wn.2d 46, 50, 186 P.3d 1055 (2008).
ANALYSIS
The PRA ?is a strongly-worded mandate for open government? that provides
the public with access to public records. Rental Hous. Ass'n of Puget Sound v. City of
Des Moines, 165 Wn.2d 525, 527, 199 P.3d 393 (2009); RCW 42.56.070. In Nast,
this court held that the PRA did not apply to court case files. 107 Wn.2d at 305-06. In
light of Nast, we must now determine whether the PRA applies to the requested
judicial records in this case. We first examine the scope of the holding in Nast and
then consider Koenig?s argument that we should overrule Nast entirely.
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I. Does Nast Apply to the Requested Judicial Records
In Nast, an attorney challenged a new King County court rule that required one-
day notice to access court case files, alleging it violated the PRA.1 107 Wn.2d at 301-
02. This court held that the PRA did not apply to the case files, giving three reasons:
(1) the common law already provided a common law right of access to the files, (2) the
PRA did not provide for exceptions to public disclosure requirements developed in the
common law, and (3) the PRA did not specifically include courts or court case files.
Id. at 307. Two subsequent Court of Appeals decisions have interpreted Nast to hold
that the judiciary and judicial records are not subject to the PRA. Spokane & E.
Lawyer v. Tompkins, 136 Wn. App. 616, 621-22, 150 P.3d 158 (upholding denial of
public records request for correspondence from county judges to the bar association
regarding local lawyers), review denied, 162 Wn.2d 1004 (2007); Beuhler v. Small,
115 Wn. App. 914, 918, 64 P.3d 78 (2003) (upholding denial of public records request
for a computer file containing a judge?s notes on prior sentences he had imposed).
Koenig argues that the Nast holding should be limited to court case files
accessible through the common law, but this interpretation has no basis in the Nast
opinion. In Nast, this court looked to the language in the PRA to determine whether
1 Nast interpreted the public disclosure act (PDA), former chapter 42.17 RCW, which
was later recodified as the current PRA. The definitions at issue are identical. For the
sake of consistency, references to the PDA have been changed to the PRA.
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82288-3
the court case files were considered ?public records.? 107 Wn.2d at 304-05. The
PRA defines a ??[p]ublic record?? as a ?writing containing information relating to the
conduct of government . . . [that is] prepared, owned, used, or retained by any state or
local agency.? RCW 42.56.010(2). ??State agency?? is defined as a ?state office,
department, division, bureau, board, commission, or other state agency.? RCW
42.56.010(1). ??Local agency?? is defined as a ?county, city, town, municipal
corporation, quasi-municipal corporation, or special purpose district, or any office,
department, division, bureau, board, commission, or agency thereof, or other local
public agency.? Id.
The records in Nast and the records at issue here clearly meet the first part of
the PRA?s definition of public records?both sets of records are writings that contain
information relating to the conduct of government. The only question is whether the
entity that created the records (here, the judiciary) is a ?state or local agency.? The
Nast court resolved this question, holding that the PRA definitions do not include
?either courts or case files.? 107 Wn.2d at 306. Because the records met the other
elements of the PRA?s definition of public records, Nast necessarily held that the
judiciary is not a ?state or local agency.? We find it unreasonable to now twist this
holding to sometimes include the courts in the definition of agency. Either the entity
maintaining a record is an agency under the PRA or it is not. Under Nast, the courts
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are not included in the definition of agency, and thus, the PRA does not apply to the
judiciary. As a result, the court records requested by Koenig are not subject to
disclosure under the PRA.
II. The Nast Decision
Koenig contends that this court should reconsider Nast entirely because its
analysis was erroneous and because a recent amendment to the PRA has incorporated
common law exceptions to public disclosure requirements. The principle of stare
decisis ??requires a clear showing that an established rule is incorrect and harmful
before it is abandoned.?? Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930
(2004) (quoting In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466
P.2d 508 (1970)). This respect for precedent ?promotes the evenhanded, predictable,
and consistent development of legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of the judicial process.? Payne v.
Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).
Koenig argues that the Nast analysis erred because it failed to liberally construe
the terms ?agency? and ?public records.? First, this argument was considered by the
court in Nast, as evidenced by Justice Durham?s dissent on this very issue. Nast, 107
Wn.2d at 311-12 (Durham, J., dissenting). Making the same arguments that the
original court thoroughly considered and decided does not constitute a showing of
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?incorrect and harmful.? Brutsche v. City of Kent, 164 Wn.2d 664, 682, 193 P.3d 110
(2008). Second, the Nast court considered the full definition of agency and found that
the judiciary was not included. Nast, 107 Wn.2d at 305. Indeed, the PRA definition
of agency does not include any language referring to courts or the judiciary. The Nast
court reasonably concluded that the legislature did not intend to include the judiciary,
basing its ruling on a ?reading of the entire public records section of the [PRA].? Id.
at 306. Koenig has failed to demonstrate that this holding was incorrect and harmful.
Without such a showing, we will not overturn precedent.
Koenig also points out that the third basis for Nast (that the PRA did not
include the statutory exemptions honed under the common law right of access to court
files) no longer applies because the PRA now incorporates such statutory exemptions.
See RCW 42.56.070(1). While Koenig is correct that the third basis for Nast no longer
applies, the broader holding remains. As noted above, the fundamental basis for
Nast?that the PRA?s definition of agency does not include the judiciary?is sufficient
to support Nast?s holding. The fact that the third basis no longer applies is not enough
to overturn Nast.
More notably, the legislature has declined to modify the PRA?s definitions of
agency and public records in the 23 years since the Nast decision. This court
presumes that the legislature is aware of judicial interpretations of its enactments and
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takes its failure to amend a statute following a judicial decision interpreting that statute
to indicate legislative acquiescence in that decision. Soproni v. Polygon Apartment
Partners, 137 Wn.2d 319, 327 n.3, 971 P.2d 500 (1999). By not modifying the PRA?s
definition of agency to include the judiciary, the legislature has implicitly assented to
our holding in Nast that the PRA does not apply to the judiciary and judicial records.2
This court has already ruled on the issue of whether the judiciary is subject to
the PRA, and Koenig has not demonstrated that the established rule is incorrect and
harmful. Therefore, we affirm the trial court?s holding that the PRA does not require
the City to release the requested judicial records because the PRA does not apply to
the judiciary.3
CONCLUSION
This court previously held that the PRA does not apply to the judiciary and the
legislature acquiesced to that decision by not modifying the PRA. We see no reason to
violate the doctrine of stare decisis here. The trial court correctly held that the PRA
does not require the City to release the judicial records requested by Koenig, and we
affirm.
2 We make no comment as to whether such a modification would implicate the separation
of powers.
3 The PRA requires any agency withholding a public record to identify the specific
exemption authorizing the withholding and how it relates to the record?essentially a log
of withheld documents. RCW 42.56.210(3). Because the withheld documents are not
public records under the PRA, they are not subject to the log requirement.
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AUTHOR:
Justice Susan Owens
WE CONCUR:
Justice Charles W. Johnson Justice Mary E. Fairhurst
Justice James M. Johnson
Joel M. Penoyar, Justice Pro Tem.
Justice Tom Chambers
9