Daily Decisions: Drug Test Results Exempt from Public Records Act

The Freedom Foundation (“FF”) filed a public records request for documents relating to a ferry accident in Seattle. In Freedom Foundation v. Washington State Department of Transportation (Division 2, May 10, 2012), the Court of Appeals referred to the accident as an “allision,” which is defined as “contact between a moving vessel and a stationary vessel or object.” That was a new one for me. I like it.

Anyway, in response to FF’s request, the Department of Transportation (“DOT”) produced documents, including information that drug and alcohol testing had been conducted on the ferry’s crew. However, DOT redacted the results of the individual tests. FF filed suit, asserting a right to unredacted records.

The Court of Appeals held that the records were properly redacted pursuant to (1) the PRA’s “other statute” exception, together with (2) federal regulations requiring that drug test results be kept confidential. Under the relevant federal regulations, marine employees must be tested for alcohol and drugs following any “serious marine incident.” The ferry employees here at issue were tested pursuant to that requirement. However, related regulations require that the results of those tests be kept confidential.

While the PRA demands broad disclosure, the statute includes limited exceptions. One exception is for records that fall “within the specific exemptions [listed in an] . . . other statute which exempts or prohibits disclosure of specific information or records.” In interpreting this exception, the Court relied on Supreme Court precedent, which held that federal regulations qualify as a “statute” for purposes of the PRA’s “other statute” exception.

The Court of Appeals left open the possibility of a narrow holding. In discussing the extension of the “other statute” exception to regulations, the Court noted that here the federal statute itself included a pro-confidentiality statement and specifically empowered the agency to promulgate confidentiality-related regulations to effect that purpose. In noting this relationship between the statute and the regulation, the Court of Appeals implied that perhaps it would reach a different result if the agency promulgated confidentiality-related rules pursuant to a more general grant of rulemaking authority.

FF also argued that the relevant regulation was “inconsistent with the underlying statute.” The Court of Appeals quickly dispatched with this argument, approving of the regulation with a sort of abbreviated Chevron analysis.

Judge Quinn-Brintnall concurred in the result and wrote separately. According to the concurrence, a federal law should create an exception to the PRA if and only if the federal law preempts the PRA. In other words, the concurrence would not analyze federal laws under the “other statute” prong of the PRA, but would instead apply a regular old preemption analysis.

I wonder how much of a difference this makes in practice. Perhaps a state court could extend the “other statute” exception in cases where a federal law merely expresses an interest in confidentiality generally in connection with a type of document, whereas the concurrence would require some sort of clear statement or express requirement of confidentiality as a prerequisite for non-disclosure. I’m not sure.


One thought on “Daily Decisions: Drug Test Results Exempt from Public Records Act

  1. Pingback: [Tuesday] Monday [Afternoon] Morning Mash-up: May 15, 2012 | Ziff Blog

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