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          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CITY OF FEDERAL WAY, a Washington                   )
municipal corporation,                              )                 No. 82288-3
                                                    )
                             Respondent,            )                   En Banc
                                                    )
       v.                                           )
                                                    )
DAVID KOENIG, a Washington State                    )
resident,                                           )
                                                    )
                             Appellant.             )          Filed  October 15, 2009
                                                    )

       Owens, J. --  Washington's Public Records Act (PRA), chapter 42.56 RCW,

gives the public access to the public records of state and local agencies, with the 

laudable goals of governmental transparency and accountability.  This case requires us 

to consider the extent to which the PRA applies to the judiciary and judicial records.  

We previously considered this issue in Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 

(1986), where we held that the PRA does not apply to court case files because the 

judiciary is not included in the PRA's definition of "agency." Id. at 305-06.  We 

conclude that Nast continues to stand for the principle that the PRA does not apply to  

City of Federal Way v. Koenig
82288-3

the judiciary and that the appellant has not demonstrated a compelling reason to 

overturn Nast.  Under the doctrine of stare decisis, we will overturn precedent only if it 

is incorrect and harmful and appellant has failed to demonstrate either.  Thus, this 

court affirms the trial court and holds that the PRA does not apply to the judiciary.

                                            FACTS

       In February 2008, David Koenig requested all public records related to the 

resignation of Federal Way Municipal Court Judge Colleen Hartl, including all 

correspondence to and from presiding Federal Way Municipal Court Judge Michael

Morgan.  In response, the city of Federal Way (City) provided 183 pages of documents

but it refused to provide correspondence to and from Judge Morgan, asserting that the 

court was not subject to the PRA under Nast.  Koenig persisted in his requests, arguing 

that Nast was wrongly decided and did not apply in this case.  In June 2008, the City 

filed for an injunction affirming that the municipal court was not subject to the PRA.  

Koenig filed a cross-motion for summary judgment, asking the trial court to find that 

the PRA did apply to the municipal court and that the City had violated the PRA by 

not releasing the requested documents.

       In August 2008, Koenig made an additional public records request for a number 

of records, including documents related to job-related exemptions from jury duty and 

the appointment of pro tempore judges.  Again, the City provided a number of 

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82288-3

responsive documents but withheld those documents it classified as court documents 

and therefore not subject to the PRA.  In September 2008, the trial court granted the 

City's motion and held that the municipal court is not subject to the PRA under Nast.  

Koenig appealed that decision directly to this court.

                                 STANDARD OF REVIEW

       We review issues of statutory meaning de novo.  State v. Schultz, 146 Wn.2d 

540, 544, 48 P.3d 301 (2002).  We also review challenges to agency actions under the 

PRA de novo.  Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007).  

The PRA must be "liberally construed and its exemptions narrowly construed" to 

ensure that the public's interest is protected.  RCW 42.56.030; Livingston v. Cedeno, 

164 Wn.2d 46, 50, 186 P.3d 1055 (2008).

                                         ANALYSIS

       The PRA "is a strongly-worded mandate for open government" that provides 

the public with access to public records.  Rental Hous. Ass'n of Puget Sound v. City of 

Des Moines, 165 Wn.2d 525, 527, 199 P.3d 393 (2009); RCW 42.56.070.  In Nast, 

this court held that the PRA did not apply to court case files.  107 Wn.2d at 305-06.  In 

light of Nast, we must now determine whether the PRA applies to the requested 

judicial records in this case.  We first examine the scope of the holding in Nast and 

then consider Koenig's argument that we should overrule Nast entirely.

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I.     Does Nast Apply to the Requested Judicial Records

       In Nast, an attorney challenged a new King County court rule that required one-

day notice to access court case files, alleging it violated the PRA.1 107 Wn.2d at 301-

02.  This court held that the PRA did not apply to the case files, giving three reasons: 

(1) the common law already provided a common law right of access to the files, (2) the 

PRA did not provide for exceptions to public disclosure requirements developed in the 

common law, and (3) the PRA did not specifically include courts or court case files. 

Id. at 307.  Two subsequent Court of Appeals decisions have interpreted Nast to hold 

that the judiciary and judicial records are not subject to the PRA.  Spokane & E. 

Lawyer v. Tompkins, 136 Wn. App. 616, 621-22, 150 P.3d 158 (upholding denial of 

public records request for correspondence from county judges to the bar association 

regarding local lawyers), review denied, 162 Wn.2d 1004 (2007); Beuhler v. Small, 

115 Wn. App. 914, 918, 64 P.3d 78 (2003) (upholding denial of public records request 

for a computer file containing a judge's notes on prior sentences he had imposed).

       Koenig argues that the Nast holding should be limited to court case files 

accessible through the common law, but this interpretation has no basis in the Nast

opinion.  In Nast, this court looked to the language in the PRA to determine whether 

1 Nast interpreted the public disclosure act (PDA), former chapter 42.17 RCW, which 
was later recodified as the current PRA.  The definitions at issue are identical.  For the 
sake of consistency, references to the PDA have been changed to the PRA.

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the court case files were considered "public records."  107 Wn.2d at 304-05.  The 

PRA defines a "'[p]ublic record'" as a "writing containing information relating to the 

conduct of government . . . [that is] prepared, owned, used, or retained by any state or 

local agency."  RCW 42.56.010(2).  "'State agency'" is defined as a "state office, 

department, division, bureau, board, commission, or other state agency."  RCW 

42.56.010(1).  "'Local agency'" is defined as a "county, city, town, municipal 

corporation, quasi-municipal corporation, or special purpose district, or any office, 

department, division, bureau, board, commission, or agency thereof, or other local 

public agency."  Id.

       The records in Nast and the records at issue here clearly meet the first part of 

the PRA's definition of public records -- both sets of records are writings that contain 

information relating to the conduct of government.  The only question is whether the 

entity that created the records (here, the judiciary) is a "state or local agency."  The 

Nast court resolved this question, holding that the PRA definitions do not include 

"either courts or case files."  107 Wn.2d at 306.  Because the records met the other 

elements of the PRA's definition of public records, Nast necessarily held that the 

judiciary is not a "state or local agency."  We find it unreasonable to now twist this 

holding to sometimes include the courts in the definition of agency.  Either the entity 

maintaining a record is an agency under the PRA or it is not.  Under Nast, the courts 

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are not included in the definition of agency, and thus, the PRA does not apply to the 

judiciary.  As a result, the court records requested by Koenig are not subject to 

disclosure under the PRA.

II.    The Nast Decision

       Koenig contends that this court should reconsider Nast entirely because its 

analysis was erroneous and because a recent amendment to the PRA has incorporated 

common law exceptions to public disclosure requirements.  The principle of stare 

decisis "'requires a clear showing that an established rule is incorrect and harmful 

before it is abandoned.'"  Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 

(2004) (quoting In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 

P.2d 508 (1970)).  This respect for precedent "promotes the evenhanded, predictable, 

and consistent development of legal principles, fosters reliance on judicial decisions, 

and contributes to the actual and perceived integrity of the judicial process."  Payne v. 

Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).

       Koenig argues that the Nast analysis erred because it failed to liberally construe 

the terms "agency" and "public records."  First, this argument was considered by the 

court in Nast, as evidenced by Justice Durham's dissent on this very issue.  Nast, 107 

Wn.2d at 311-12 (Durham, J., dissenting).  Making the same arguments that the 

original court thoroughly considered and decided does not constitute a showing of 

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"incorrect and harmful."  Brutsche v. City of Kent, 164 Wn.2d 664, 682, 193 P.3d 110 

(2008).  Second, the Nast court considered the full definition of agency and found that 

the judiciary was not included.  Nast, 107 Wn.2d at 305.  Indeed, the PRA definition 

of agency does not include any language referring to courts or the judiciary.  The Nast

court reasonably concluded that the legislature did not intend to include the judiciary, 

basing its ruling on a "reading of the entire public records section of the [PRA]." Id.

at 306.  Koenig has failed to demonstrate that this holding was incorrect and harmful. 

Without such a showing, we will not overturn precedent.

       Koenig also points out that the third basis for Nast (that the PRA did not 

include the statutory exemptions honed under the common law right of access to court 

files) no longer applies because the PRA now incorporates such statutory exemptions.  

See RCW 42.56.070(1).  While Koenig is correct that the third basis for Nast no longer 

applies, the broader holding remains.  As noted above, the fundamental basis for 

Nast -- that the PRA's definition of agency does not include the judiciary -- is sufficient 

to support Nast's holding.  The fact that the third basis no longer applies is not enough 

to overturn Nast.

       More notably, the legislature has declined to modify the PRA's definitions of 

agency and public records in the 23 years since the Nast decision.  This court 

presumes that the legislature is aware of judicial interpretations of its enactments and 

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takes its failure to amend a statute following a judicial decision interpreting that statute 

to indicate legislative acquiescence in that decision.  Soproni v. Polygon Apartment 

Partners, 137 Wn.2d 319, 327 n.3, 971 P.2d 500 (1999).  By not modifying the PRA's 

definition of agency to include the judiciary, the legislature has implicitly assented to 

our holding in Nast that the PRA does not apply to the judiciary and judicial records.2

       This court has already ruled on the issue of whether the judiciary is subject to 

the PRA, and Koenig has not demonstrated that the established rule is incorrect and 

harmful.  Therefore, we affirm the trial court's holding that the PRA does not require 

the City to release the requested judicial records because the PRA does not apply to 

the judiciary.3

                                       CONCLUSION

       This court previously held that the PRA does not apply to the judiciary and the 

legislature acquiesced to that decision by not modifying the PRA.  We see no reason to 

violate the doctrine of stare decisis here.  The trial court correctly held that the PRA 

does not require the City to release the judicial records requested by Koenig, and we 

affirm.

2 We make no comment as to whether such a modification would implicate the separation 
of powers.
3 The PRA requires any agency withholding a public record to identify the specific 
exemption authorizing the withholding and how it relates to the record -- essentially a log 
of withheld documents.  RCW 42.56.210(3).  Because the withheld documents are not 
public records under the PRA, they are not subject to the log requirement.

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AUTHOR:
        Justice Susan Owens

WE CONCUR:

        Justice Charles W. Johnson                       Justice Mary E. Fairhurst

                                                         Justice James M. Johnson

                                                         Joel M. Penoyar, Justice Pro Tem.

        Justice Tom Chambers

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