Chapter §17.3 Reverse PRA Litigation

• Jurisdiction: Washington

§17.3 REVERSE PRA LITIGATION

This section discusses procedural matters related to reverse PRA actions.

(1) Parties

Requirements for parties plaintiff and defendant in reverse PRA actions are discussed below.

(a) Plaintiffs

The plaintiff in a reverse PRA action is the individual or entity seeking to enjoin release of a requested public record. As noted above, the PRA permits "a person who is named in the record or to whom the record specifically pertains" to bring such an action. RCW 42.56.540. This provision functions as a standing requirement, assuring that the party seeking the injunction has an interest in barring the record's release. The Washington Court of Appeals also has permitted a union to assert an interest in its members' records. Seattle Firefighters Union Local No. 27 v. Hollister, 48 Wn.App. 129, 131, 737 P.2d 1302, review denied, 108 Wn.2d 1033 (1987) (firefighters union brought suit on behalf of retired police and fire personnel to enjoin disclosure of disability retirement records). As long as the person is named in the record or it pertains to that person, the third party has standing even if the exemption that is raised was not intended to directly protect that party. See Robbins, Geller, Rudman & Dowd, LLP v. State, 179 Wn.App. 711, 719, 328 P.3d 905 (2014).

Most typically, the plaintiff learns of the PRA request upon notification by the agency. RCW 42.56.540 provides agencies "the option of notifying persons named in the record or to whom a record specifically pertains" that disclosure of a record concerning them has been requested. The PRA does not mandate notice to third parties unless the agency is required by law to provide such notice. RCW 42.56.540. In one case involving numerous individual private banking records, an appellate court held that the trial court was required to make "reasonable provision for at least attempted notice" to all of the affected customers. Ameriquest Mortg. Co. v. State Attorney Gen., 148 Wn.App. 145, 156-57, 199 P.3d 468 (2009), aff'd, 170 Wn.2d 418, 241 P.3d 1245 (2010). The attorney general's model PRA rules provide that, before sending a notice, the agency should have a reasonable belief that the record is arguably exempt. WAC 44-14-04003(11). The model PRA rules are permissive, not mandatory, and do not bind any agency. WAC 44-14-00003.

When third-party notice is provided, it should inform the third party that a request has been made for a record that pertains to the third party and that the agency plans to disclose the record in a reasonable amount of time—commonly 10 business days—unless the third party obtains an injunction blocking disclosure. See Seattle Firefighters Union, 48 Wn.App. at 131; see also WAC 44-14-04003(11). The agency also should include the actual records it plans to disclose or thoroughly describe those records and offer to allow the third party to inspect the records. In most circumstances, the agency also should inform the requestor that it is providing third-party notice. A third party's decision not to object to a public records request does not procedurally bar that party's right to object to future requests for the same documents, but subsequent efforts to enjoin disclosure may be challenged if the confidential information at issue was released in response to the prior request. Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 410, 259 P.3d 190 (2011) ("The failure to object to a single public records request is only a...