Washington Court of Appeals: Records Requesters Can Be Excluded from Public Records Disclosure Litigation
In a published opinion released Nov. 7, 2007, the Washington Court of Appeals held that a party seeking records under the state Public Records Act (PRA) is not an indispensable party, and may be denied the right to be heard, in litigation aimed at blocking the release of the records.
The decision, Burt v. Department of Corrections, No. 24076-2, slip op. (Wn. App. Division III Nov. 6, 2007), should be of concern to news entities and other public records requesters. In response to a PRA request, third parties—typically, the subjects of the requested records—sometimes sue to enjoin the public agency at issue from releasing the record. While the requester need not be named as a party in such a lawsuit, the requester can ask the court for permission to participate in the litigation. Courts have invariably granted such requests and allow requesters to be heard in favor of disclosure.
Not so in Burt. The case arose out of a PRA request made by a state inmate, asking the Department of Corrections to provide personal information about a number of corrections employees. Eleven of the employees sued the department seeking to block the records’ release. The prisoner was not named as a party, but was informed of the action. The following month, the court granted the employees’ motion to enjoin release of the documents. The month after that, the prisoner moved for intervention, joinder as an indispensable party and reconsideration. All of the motions were denied.
The Court of Appeals affirmed. It found, first, that the trial court’s denial of the inmate’s request to intervene as a matter of right pursuant to Civil Rule 24(a) was proper because the inmate’s motion was untimely.
The court further agreed that the inmate was not an indispensable party under Civil Rule 19(a). Under that rule, a court considers whether the person is needed for a just adjudication and whether in equity and good conscience the action should not proceed without the applicant. The court observed that in an action seeking to prevent disclosure of public records, the party objecting to disclosure bore the burden of proving the record should not be disclosed: “Joining [the inmate] as a party would not affect the employees’ burden to overcome this presumption. And, [his] disclosure request and his interest as a member of the public were easily apparent to the trial court.” Accordingly, the court found, the requester’s appearance was not needed.
This portion of the court’s decision is particularly troubling because it ignores the consequences of allowing a PRA dispute to be decided without the requester’s participation. In third-party PRA actions, the state agency is sometimes hostile to disclosure, or at least ambivalent to whether the records at issue are disclosed. If requesters are not allowed to intervene freely and to argue vigorously for disclosure, the court is left to decide the issue without hearing all interested viewpoints— a situation that our adversarial legal system generally does not tolerate.
The facts in Burt are distinguishable from the typical news media request for public records. At least some of the requested records were plainly exempt from disclosure, and there is some suggestion that the plaintiffs feared harassment. Still, the case serves as a reminder to records requesters that they should seek to formally intervene in any litigation involving their request as soon as they learn about the action. In addition, it is likely that parties hostile to disclosure will rely on Burt to argue that records requesters can be denied the ability to be heard in litigation relating to their requests.