Washington Supreme Court Clarifies Agency Obligations Regarding Constitutional PRA Exemptions

In 2023, Division One of the Washington Court of Appeals (COA) issued its opinion in Does v. Seattle Police Department. In footnote 43 of the opinion, the COA indicated that when a Public Records Act (PRA) request seeks a records disclosure that implicates a third party’s “established” constitutional rights, the responding agency cannot merely notify the third party of their ability to block disclosure through their own court case. Instead, the COA found that the responding agency must preemptively assert the third party’s constitutional rights by withholding the records (or portions of them) and defending any court action the requester brings to challenge the agency’s nondisclosure — Does v. Seattle Police Dep’t (COA 2023)

This conclusion immediately raised a lot of concerns for public records officers (PRO) and other professionals — not the least of which would be attempting to keep up with the ever-shifting landscape of federal constitutional privacy law.

With its decision in Does v. Seattle Police Department (Wa. S.Ct. 2025), the Washington Supreme Court (Supreme Court) soundly rejected the COA’s expectation and explicitly endorsed the practice of providing third-party notice to the subject of a record since they are in the best position to assert their own constitutional rights. This blog will look at both cases and the implications for Washington public records disclosure.

Background

This case arose when several Seattle Police Officers attended the January 6, 2021, political rally in Washington, D.C. The Seattle Police Department (SPD) subsequently investigated the officers to determine whether they broke any laws after the rally. SPD eventually concluded that four of the officers were lawfully exercising their First Amendment rights of political speech and assembly by attending the rally, and that they did not participate in any illegal activity that occurred afterwards. In PRA terms, the SPD found no substantiated allegations of misconduct against these four officers.

The SPD received several public records requests about the investigation. SPD determined that no clearly applicable public records exemptions applied, so it gave the officers third-party notice that records would be released (including some records identifying the officers by name).

The officers filed for a court injunction (or order) to prohibit SPD from releasing the records with their names unredacted, arguing that disclosure would violate their First Amendment privacy rights by revealing their political opinions. What followed was a series of court cases and appeals that eventually resulted in the 2023 COA decision and the Supreme Court’s subsequent reversal of it in 2025.

The Court of Appeals Decision

The trial court originally found that the officers had no protected constitutional privacy interest in their rally attendance or in their subsequent statements to their employer.

Without directly addressing the PRA’s privacy provisions, the COA analyzed federal constitutional privacy law and U.S. Supreme Court decisions at length to conclude that the SPD officers had a federally protected privacy interest that the department's records disclosure would infringe. Accordingly, the COA concluded that the officer’s protected interest required the SPD to demonstrate that disclosing the records would “further a compelling state interest.” This standard put the burden on SPD to prove that its disclosure would be in the public’s interest.

In so doing, the COA did not apply the PRA injunction standard in RCW 42.56.540, one which requires the opposite: a finding that disclosure “would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions.” This statutory standard puts the burden on the party trying to prevent disclosure to prove that disclosure would not be in the public’s interest.

In rejecting the statutory injunction standard, the COA stated that:

such a requirement would authorize a state or local government to violate citizens' constitutional rights when they establish the impingement of such rights but are unable to also demonstrate satisfaction of an additional statutory requirement to obtain injunctive relief.

As noted above, in shifting this burden of proof on the public agency, the COA stated in its footnote 43 that SPD had argued that it had no obligation to independently honor the constitutional rights of third parties in response to records requests. The COA rejected this position, saying:

The City need not serve as the lawyer for every individual mentioned in requested public records. However, when the constitutional right implicated by disclosure of particular requested records is clear, the City must refuse to disclose the records (or the relevant portions thereof). The City must then defend against any challenge to the action by the records requestor, unless, following notice, the individual whose rights are implicated does not object to disclosure. The City's supreme obligation is to the federal constitution, not to the state statute.

The parties appealed this decision to the state supreme court. In particular, Seattle challenged the COA’s determination regarding agencies' responsibilities.

The Public Records Officer’s Concern

The COA’s lengthy constitutional privacy analysis aside (or perhaps in recognition of the lengths the COA had to go through to conclude the existence of a protected right), many jurisdictions expressed great concern about the COA’s footnote 43. In addition to concerns raised by the City of Seattle, several other interested parties filed amici briefs (or “friend of the court” briefs) with the court.

Perhaps the biggest concern was that the COA’s decision put public agencies in a lose-lose situation. To illustrate: if a court determined that a public agency wrongfully asserted a third party’s constitutional rights, the agency would be subject to substantial financial penalties under the PRA for “wrongfully” withholding records or information. Alternatively, if a public agency disclosed records potentially subject to a third party’s constitutional rights or withheld such records but failed to defend against a requester’s court challenge over the withholding, the agency could be exposed to the third party’s claims of federal civil rights violations.

The difficulty with many constitutional rights — particularly First Amendment rights — is that a situation’s unique facts can have a huge impact on the outcome of a case. The situation is rarely “clear.” In the context of privacy rights, the holder of that right must take steps to protect that privacy — you cannot claim a right to privacy if you willingly expose private activity to the public. Against this backdrop, how would a public records professional even begin to evaluate 1) whether a protected constitutional interest exists and 2) whether the subject of the records has taken sufficient steps to protect that right?

The Washington Supreme Court Decision

In one of its main holdings, the Supreme Court reversed the COA ruling and found that the PRA’s statutory injunction standard (which places the burden on the party seeking to prevent disclosure) was the appropriate standard to apply. This meant that it was on the SPD officers, as the parties seeking to prevent disclosure, to prove that disclosure would not be in the public interest.

The Supreme Court resolved the privacy issue primarily by relying on the existing employee privacy exemptions within the PRA before needing to engage in any lengthy constitutional analysis. The court concluded that a public employee has no protected privacy interest in participating in a highly attended public event, and in this case, there was no evidence or claim that the SPD officers took steps to conceal their identities so they could attend the event anonymously.

Perhaps even more important for public employees who process records requests, the Supreme Court rejected the COA’s contention that public agencies are obligated to assert constitutional-based exemptions on behalf of third parties and defend those constitutional rights in court.

In particular, how is a public agency to know whether or not the subject of a record has taken sufficient steps to ensure their privacy? For example, in the context of attending a political rally, did the person obscure their face or did they openly pass in front of news cameras and post on social media about their attendance? There is no reasonable way for a public agency to know whether someone has sufficiently safeguarded their privacy to survive a court challenge on the legality of asserting a constitutional exemption. This is the very thing that the Supreme Court pointed out:

The person who is the subject of the public record is in the best position to identify what interest, if any, they hold that could be invaded as a result of disclosure of the public records.

The court found “no error” in the City of Seattle’s practice of providing third-party notice under RCW 42.56.540 to inform the subject of the public record that the record has been requested, thus allowing the third party to seek an injunction preventing disclosure.

Soooo … where does that leave PROs?

The Supreme Court did reaffirm that exemptions based on First Amendment rights are incorporated into the PRA via the “other statute” provision in RCW 42.56.070(1). However, public agencies are not “obligated” to assert those rights and bear the potential financial risk of being wrong — although they can do so if they so choose. The Supreme Court approved of the practice of providing third-party notice to the person in the best position to assert those constitutional rights.

The Supreme Court’s analysis of statutory employee privacy was also very helpful but beyond the scope of today’s blog. I hope to explore this decision in greater depth later this fall in a PRA Deep Dive webinar on privacy exemptions.