Chapter §8.5 Privacy and Other Statutes and Constitutional Rights

• Jurisdiction: Washington

§8.5 PRIVACY AND OTHER STATUTES AND CONSTITUTIONAL RIGHTS

(1) Statutes

Several statutes found outside of Chapter 42.56 RCW have been cited as "other statute" exemptions to the PRA. Those statutes are addressed elsewhere in this deskbook and include the following:

(2) First Amendment

The United States Supreme Court has held that disclosure, in response to a PRA request, of the names and addresses of referendum petition signers in general does not violate the signers' First Amendment right of associational privacy. John Doe No. 1 v. Reed, 561 U.S. 186, 130 S. Ct. 2811, 177 L. Ed. 2d 493 (2010). The petition at issue sought to place on the statewide ballot, through a process authorized by the Washington Constitution, a referendum rejecting a bill to expand rights and responsibilities of state-registered domestic partners. Opponents of the bill successfully garnered enough signatures to place the referendum, R-71, on the ballot. Several public records requests were made for the identifying information of the signatories. The referendum sponsors and others filed a complaint and a motion for a preliminary injunction in federal district court, asserting that (1) the PRA was unconstitutional as applied to referendum petitions in general, and (2) the PRA was unconstitutional as applied to the R-71 referendum because "there is a reasonable probability that the signatories of the R-71 petition will be subjected to threats, harassment, and reprisals." Doe v. Reed, 661 F.Supp.2d 1194, 1196 (W.D. Wash. 2009). The district court granted the request for a preliminary injunction on count one, but the United States Court of Appeals for the Ninth Circuit reversed on that count. Doe v. Reed, 586 F.3d 671, 681 (9th Cir. 2009).

The U.S. Supreme Court, in an opinion by Justice John Roberts, affirmed, concluding that signing a petition to place a referendum on the ballot is the expression of a political view, and thus implicates the First Amendment, regardless of whether there is an attendant legal effect to that expressive activity. John Doe No. 1, 561 U.S. at 187. Focusing on the fact that the PRA is not a restriction on political speech, but compels disclosure of public records, the court applied the "exacting scrutiny" standard of review for First Amendment-based challenges to disclosure requirements within the electoral context. Under this standard, there must be a "substantial relation" between the disclosure requirement and a sufficiently important governmental interest, the strength of which "must reflect the seriousness of the actual burden on First Amendment rights." Id. (quoting Davis v. Fed. Election Comm'n, 554 U.S. 724, 128 S. Ct. 2759, 171 L. Ed. 2d 737).

The Court ultimately concluded that, as applied to petitions generally, the PRA does not violate the First Amendment because the state's interest in disclosure is sufficiently strong. Specifically, "[t]he State's interest is...