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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

FREEDOM FOUNDATION, a Washington                                 No.  41198-9-II
nonprofit corporaton,

                             Appellant,

       v.
                                                                  PUBLISHED
WASHINGTON STATE DEPARTMENT OF                                     OPINION
TRANSPORTATION, division of Washington 
State Ferries,

                             Respondent.

       Van Deren, J.  --  Following a ferry accident in Seattle, Freedom Foundation1 filed a public 

records request with Washington State Ferries/Washington State Department of Transportation 

(WSDOT) seeking accident investigation reports.2  WSDOT provided reports, including that 

mandatory drug and alcohol testing of the ferry's crew members was conducted, but it redacted 

individual test results and other information.  Freedom Foundation filed a chapter 42.56 RCW 

Public Records Act (PRA) suit seeking disclosure of unredacted records.  The trial court granted 

WSDOT's summary judgment motion denying disclosure of the requested records.  The primary 

contention on appeal concerns whether the trial 

1 During the course of this litigation, Appellant Evergreen Freedom Foundation changed its name 
to Freedom Foundation, and successfully moved this court to change the case name to reflect that 
change.  

2 The Coalition for Open Government filed an amicus brief in support of Foundation's appeal. 

No. 41198-9-II

court properly ruled that WSDOT properly redacted the crew's drug and alcohol test results in 

compliance with a federal regulation, 49 C.F.R. § 40.321 (2006)3 directing marine employers to 

keep test results confidential, because that regulation qualifies as an "other statute" exemption 

under RCW 42.56.070(1).  WSDOT concedes on appeal that its initial redactions were 

overbroad.  

       We hold that 49 C.F.R. § 40.321 and its enabling federal statute qualify as an "other 

statute" exemption under RCW 42.56.070(1), and that the trial court properly granted summary 

judgment to WSDOT.  But we accept WSDOT's concession that its initial redactions were 

overbroad and remand for determination of costs, fees, and daily penalties and award the 

Foundation proportional attorney fees on appeal.  

                                            FACTS

       The material facts are not in dispute.  On August 30, 2009, the Washington State ferry, 

M/V Wenatchee, ran into the Coleman Dock at Pier 52 in Seattle in heavy fog with enough force 

to cause moderate damage to both the dock and the vessel.  The impact also caused a ferry 

passenger to fall to the deck and to suffer facial injury.  Washington State Ferries, as a subdivision 

of WSDOT, and a marine employer subject to United States Coast Guard (USCG) regulations, 

initiated mandatory chemical testing of its employees directly involved in the 

3 All C.F.R. citations used in this opinion are current through January 19, 2012.

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No. 41198-9-II

allision4 incident.5  The drug and alcohol test results were documented on the appropriate USCG 

and United States Department of Transportation (USDOT) forms in compliance with USCG 

regulations.  See 46 C.F.R. § 4.06-60 (2005). 

       The Foundation submitted two separate requests for records under the PRA for records 

related to the incident, and WSDOT released 10 test-related form documents with drug and 

alcohol test results redacted.  These redacted forms are at issue in this case.  

       WSDOT received Foundation's first public records request on August 31, 2009.  WSDOT 

acknowledged the request within five days on September 1, 2009, and designated the matter as 

number PDR-09-0968 (Foundation's First Request).  WSDOT identified potentially responsive 

records and reviewed them for confidential or otherwise exempt information with assistance of 

legal counsel before releasing them to Foundation on November 5, 2009.6  

       In the records produced in response to the Foundation's First Request, WSDOT included 

a copy of USCG 2692B, a form used by marine employers when reporting drug and alcohol test 

results after a serious marine incident.  See 46 C.F.R. § 4.06-60.  The USCG 2692B was redacted 

4 An allision involves contact between a moving vessel and a stationary vessel or object. 

5 Marine employers are required to conduct alcohol and drug testing of employees involved in any 
"serious marine incident," defined as including an injury to a passenger that requires professional 
medical treatment beyond first aid, and/or property damage greater than $100,000.  See 46 C.F.R. 
§§ 4.03-2(a)(2), (3); 4.06-3 (2005).  Clerk's Papers (CP) at 88.  

6 There is some discrepancy in the record as to whether WSDOT initially released records on 
November 5, or November 9.  But in its response brief, WSDOT agrees with Foundation that it 
initially provided redacted records on November 5, 2009.  

                                               3 

No. 41198-9-II

in accord with WSDOT's understanding of USCG requirements.7  

       The Foundation objected to the redactions to USCG 2692B in a letter that WSDOT 

received on November 19, 2009.  WSDOT again consulted with legal counsel and, in a letter 

dated November 24, 2009, notified the Foundation that it would not release the redacted 

information.  

       The Foundation asked the State Attorney General's Office (AGO), under RCW 

42.56.530, to review WSDOT's redactions to USCG 2692B.8 The AGO issued a letter opinion 

to the Foundation concluding that federal law requires WSDOT to redact individual alcohol test 

results from the form and, thus, the agency properly determined that the test results are exempt 

from public disclosure.  And WSDOT learned that the USCG had confirmed that drug and 

alcohol test information had to be redacted from USCG 2692B before the form was released to 

the public.  

       Nevertheless, after further consultation with its legal counsel, WSDOT reconsidered the 

scope of its redactions and released a revised redacted version of the USCG 2692B.  Although 

redactions to the alcohol test results remained, WSDOT removed redactions regarding other 

information, such as the type of tissue or urine sample that was provided and how soon after the 

7 As required by RCW 42.56.210(3), WSDOT sent the Foundation a denial letter and exemption 
log on November 5, 2009, explaining the basis of the redactions to the USCG 2692B form.  

8 RCW 42.56.530 provides that:
       Whenever a state agency concludes that a public record is exempt from disclosure 
       and denies a person opportunity to inspect or copy a public record for that reason, 
       the person may request the attorney general to review the matter.  The attorney 
       general shall provide the person with his or her written opinion on whether the 
       record is exempt.  

                                               4 

No. 41198-9-II

incident those samples were provided.9  

       The Foundation made a second records request on November 19, 2009, which WSDOT 

identified as PDR-09-1322 (Foundation's Second Request).  WSDOT's December 22, 2009

response to the Foundation's Second Request included the same USCG 2692B form that had 

already been provided to the Foundation's First Request and had the same information redacted 

as in WSDOT's original (Nov. 9, 2009) production.  In addition, WSDOT released seven 

USDOT alcohol test forms and two pages containing drug and alcohol test summary information 

WSDOT acquired as part of the USCG's post-incident investigation.  The initial redactions to 

these records (the 10 forms) were similar to the initial redactions made to USCG 2692B.  

       On April 16, 2010, the Foundation filed the present action for disclosure of public records 

in Thurston County Superior Court.  Both the Foundation and WSDOT filed for summary 

judgment.  The trial court denied the Foundation's motion for summary judgment and granted 

summary judgment in favor of WSDOT, finding that 49 C.F.R. § 40.321 prohibits WSDOT from 

releasing drug and alcohol test records10, and that the federal regulation falls within the "other 

statute" exemption in RCW 42.56.070(1).  The Foundation appealed.  

       On September 30, 2010, two weeks after the Foundation filed its appeal, WSDOT 

supplied the Foundation with new copies of the "10 forms" that the agency had previously 

9 As discussed below, WSDOT concedes on appeal that its initial redactions to USCG 2692B, as 
released November 5, 2009, were overbroad because the redactions included drug and alcohol 
related information that was not a test result.  WSDOT contends that it corrected this error on 
February 5, 2010, when it provided revised redactions.  

10 The trial court did not reach WSDOT's alternative argument based on federal preemption.  

                                               5 

No. 41198-9-II

produced on December 22, 2009, but with fewer redactions.11 In its response to the Foundation's 

appeal, WSDOT admits that its prior redactions were overbroad.  WSDOT continues to withhold 

the individual test results of the Wenatchee crew members, but the documents WSDOT produced 

on September 30, 2011, supplied information about the tested employees' identities, the testing 

circumstances, and the testing methodologies.  WSDOT asks that we remand for a determination 

of penalties, costs, and fees for the time period of November 5, 2009, until September 30, 2010.  

                                          ANALYSIS

       Foundation contends that the trial court erred in ruling that 49 C.F.R. § 40.321 falls within 

the "other statute" exemption of RCW 42.56.070(1).  We disagree.  

I.     Standard of Review

       Our review of agency actions under the PRA is de novo.  Neighborhood Alliance of 

Spokane Cnty. v. Cnty. of Spokane, 172 Wn.2d 702, 715, 261 P.3d 119 (2011) (citing RCW 

42.56.550(3)).  We review interpretations of law de novo.  Neighborhood Alliance, 172 Wn.2d at 

715.  We review grants of summary judgment de novo, and we engage in the same inquiry as the 

trial court.  Neighborhood Alliance, 172 Wn.2d at 715. A public records case may be decided 

based on affidavits alone.  O'Neill v. City of Shoreline, 170 Wn.2d 138, 153-54, 240 P.3d 1149 

(2010).  Summary judgment is proper if there is no genuine issue of material fact and the moving 

party is entitled to judgment as a matter of law.  CR 56(c).  Here, there are no material facts in 

11 WSDOT moved to supplement the record with these documents when it filed its response brief, 
and a commissioner of this court granted the motion on April 7, 2011.  

                                               6 

No. 41198-9-II

dispute.

II.    Public Records Act Statutory Exemptions

       "The PRA is a strongly worded mandate for broad disclosure of public records."  

Neighborhood Alliance, 172 Wn.2d at 714. The PRA "'stands for the proposition that 'full 

access to information concerning the conduct of government on every level must be assured as a 

fundamental and necessary precondition to the sound governance of a free society.'"  

Neighborhood Alliance, 172 Wn.2d at 714-15. (quoting Progressive Animal Welfare Soc'y v. 

Univ. of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994); and RCW 42.17A.001(11)).  The 

PRA requires agencies to disclose any public record on request unless the record falls within a 

specific, enumerated exemption.  Neighborhood Alliance, 172 Wn.2d at 715 (citing RCW 

42.56.070(1)).  RCW 42.56.070(1) provides in relevant part: "Each agency, in accordance with 

published rules, shall make available for public inspection and copying all public records, unless

the record falls within the specific exemptions [listed in] this section, this chapter, or other statute

which exempts or prohibits disclosure of specific information or records."  (Emphasis added.)  

See Ameriquest Mortg. Co. v. Wash. State Office of Atty. Gen., 170 Wn.2d 418, 440, 241 P.3d 

1245 (2010) ("[T]the PRA's 'other statute' exemption allows for a separate statute to preclude 

disclosure of 'specific information' or entire 'records.  RCW 42.56.070(1).").  

       A.  "Other Statute" Exemption under RCW 42.56.070(1).  

       The primary legal dispute here is whether a federal regulation, 49 C.F.R. § 40.321, which 

provides for confidentiality of drug and alcohol testing results, can prohibit disclosing public 

employee test results sought through a Washington PRA request, test results that address public 

                                               7 

No. 41198-9-II

employee job performance of interest to Washington's citizens.  

       We rely on our Supreme Court's resolution of this issue in its recent decision in 

Ameriquest Mortg. Co., 170 Wn.2d 418.  There, our Supreme Court addressed another federal 

regulation addressing different privacy protections,12 but Ameriquest establishes the rule that 

federal regulations with their enabling statutes qualify as "other statute" exemptions under RCW 

42.56.070(1).  Ameriquest, 170 Wn.2d at 440.  Our Supreme Court explained as follows:

       Although the PRA requires state agencies to 'make available for public inspection 
       and copying all public records,' the PRA provides an exemption to this disclosure 
       requirement if there is any 'other statute which exempts or prohibits disclosure of 
       specific information or records.' RCW 42.56.070(1). This other statute exemption 
       avoids any inconsistency and allows the federal regulation's privacy protections to 
       supplement the PRA's exemptions. We have held numerous other state statutes'
       disclosure prohibitions are thus incorporated into the PRA. See Hangartner v. City 
       of Seattle, 151 Wn.2d 439, 453, 90 P.3d 26 (2004) (RCW 5.60.060(2)(a)); 
       Progressive Animal Welfare Society v. Univ. of Wash., 125 Wn.2d 243, 261 -- 63, 
       884 P.2d 592 (1994) (Ch. 19.108 RCW; RCW 4.24.580). We see no reason why 
       federal law should be treated differently. We conclude that the [federal statute] 
       (together with the [federal regulation] enforcing it) is an 'other statute.' RCW 
       42.56.070(1).

Ameriquest, 170 Wn.2d at 439-40.  

       Here, both the federal regulation and its underlying statute speak to confidentiality of 

these particular test results.  49 C.F.R. § 40.321 provides in relevant part that an employer is 

"prohibited from releasing individual test results or medical information about an employee to 

third parties without the employee's specific written consent." The underlying enabling statute, 

12 Ameriquest addressed the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801-6809 (1999), and the 
relevant Federal Trade Commission regulations, 16 C.F.R. § 313 (2000), which required financial 
institutions to protect customer privacy.  170 Wn.2d at 424.  At issue was whether these federal 
provisions preempted the PRA or otherwise barred the Attorney General's Office from disclosing 
customer information received from Ameriquest during an investigation.  Ameriquest, 170 Wn.2d 
at 424.  

                                               8 

No. 41198-9-II

49 U.S.C. § 5331 (2005), provides in relevant part as follows:

       (b)Testing program for public transportation employees.--(1)(A)            In the 
       interest of public transportation safety, the Secretary shall prescribe regulations 
       that establish a program requiring public transportation operations that receive 
       [specified federal] financial assistance . . . to conduct . . . post-accident testing of 
       public transportation employees responsible for safety-sensitive functions (as 
       decided by the Secretary) for the use of a controlled substance . . . and  . . . for the 
       use of alcohol in violation of law or a United States Government regulation.  

49 U.S.C. § 5331(b)(1)(A).  

       In prescribing regulations under this subsection, the Secretary of Transportation . . 
       . may require that post-accident testing of such a public transportation employee 
       be conducted when bodily injury or significant property damage occurs in any 
       other serious accident involving public transportation.

49 U.S.C. § 5331(b)(2)(B).  

       Testing and laboratory requirements.--In carrying out subsection (b) of this 
       section, the Secretary of Transportation shall develop requirements that shall . . . 
       promote, to the maximum extent practicable, individual privacy in the collection of 
       specimens; [and] provide for the confidentiality of test results . . .

49 U.S.C. § 5331(d)(1), (7).  

       (f) Relationship to other laws, regulations, standards, and orders.--(1) A State 
       or local government may not prescribe, issue, or continue in effect a law, 
       regulation, standard, or order that is inconsistent with regulations prescribed under 
       this section.

49 U.S.C. § 5331(f)(1).  

       The directive in 49 U.S.C. § 5331, requiring the Secretary to prescribe regulations that 

protect the confidentiality of employee post-accident drug and alcohol test results, was fulfilled in 

49 C.F.R. § 40.321's prohibition against release of drug and alcohol test results without the 

employee's consent.  Accordingly, we hold that the confidentiality protections directed by the 

federal statute (49 U.S.C. § 5331) that are implemented in the federal regulation (49 C.F.R. § 

                                               9 

No. 41198-9-II

40.321) amount to an "other statute" exemption to the PRA's disclosure requirements under 

RCW 42.56.070(1).  See Ameriquest, 170 Wn.2d at 439-40.  

       B.  49 C.F.R. § 40.321 Does Not Contradict Its Enabling Statute. 

       The Foundation attempts to distinguish Ameriquest by arguing that the federal regulation 

here is "inconsistent with its underlying statute." Br. of Appellant at 25.  We reject this 

contention.  

       The Foundation points to 49 U.S.C. § 5331(d)(7), which states that the Secretary of 

Transportation shall develop requirements that shall "provide for the confidentiality of test results 

and medical information (except information about alcohol or a controlled substance) of 

employees, except that this clause does not prevent the use of test results for the orderly 

imposition of appropriate sanctions under this section." (Emphasis added.)  The Foundation 

focuses on the parenthetical language, arguing that USDOT misconstrued the plain meaning of 

this section when it adopted 49 CFR § 40.321.  But that argument ignores the other portions of

49 U.S.C § 5331 set out above.  

       Our Supreme Court has mandated that the entire statute must be considered when we 

review an agency's interpretation of a statute that the agency is charged with administering:

       When we review an agency's construction of a federal statute, we must determine 
       whether Congress has directly spoken on the question at issue and has clearly 
       indicated its intent.  Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 
       U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).  If it has, then 'that is 
       the end of the matter,' and we must give effect to that intent.  Chevron, 467 U.S. 
       at 842.  While engaging in this analysis, we must look to the statute in its 
       entirety -- all of its provisions, its object, and its policy -- not just at the particular 
       language in isolation.  Dole v. United Steelworkers of Am., 494 U.S. 26, 35, 110 
       S. Ct. 929, 108 L. Ed. 2d 23 (1990).  If, on the other hand, 'the statute is silent or 
       ambiguous with respect to the specific issue, the question for [us] is whether the 
       agency's [interpretation] is based on a permissible construction of the statute.'  

                                               10 

No. 41198-9-II

       Chevron, 467 U.S. at 843. In such cases, the interpretation of the agency charged 
       with administering the statute is generally entitled to deference, and to sustain it 
       we need only find that the agency's interpretation was sufficiently rational to 
       preclude us from substituting our judgment for that of the agency.

Skamania Cnty. v. Columbia River Gorge Comm'n, 144 Wn.2d 30, 42-43, 26 P.3d 241 (2001).  

       Read in the context of other § 5331 provisions, the text of 49 U.S.C. § 5331(d)(7), 

requiring the Secretary to adopt procedures that "provide for the confidentiality of test results," is 

reasonable only if read to refer to adoption of regulations protecting the confidentiality of drug 

and alcohol test results.  We are required to give meaning to every word, clause, and sentence of 

a statute so that no part is rendered superfluous.  See Cox v. Helenius, 103 Wn.2d 383, 387-88, 

693 P.2d 683 (1985); Am. Legion Post #149 v. Wash. State Dept. of Health, 164 Wn.2d 570, 

585, 192 P.3d 306 (2008).  

       Here, applying the parenthetical "(except information about alcohol or a controlled 

substance)" to both preceding phrases ("test results" and "medical information") would be at odds 

with other portions of § 5331, and would render confidentiality of drug and alcohol test results 

meaningless.  49 U.S.C. § 5331(d)(7).  The more rational reading of the provision, giving 

meaning to all its parts and harmonizing this provision with other portions of § 5331, applies the 

first phrase "provide for the confidentiality of" to both "test results" and "medical information;"

and reading the parenthetical provision, excepting "information about alcohol or a controlled 

substance," which immediately follows "medical information," as qualifying "medical information"

only, and not qualifying "test results." 49 U.S.C. § 5331(d)(7).  See Am. Legion Post #149, 164 

Wn.2d at 585 (the goal is to avoid interpreting statutes to create conflicts between different 

provisions so that we achieve a harmonious statutory scheme (quotation marks and citation 

                                               11 

No. 41198-9-II

omitted)).

       The Foundation's view that the parenthetical provision excepting "information about 

alcohol or a controlled substance" modifies both "medical information" and "test results,"

suggests an ambiguity regarding how 49 U.S.C. § 5331(d)(7) may be interpreted and applied.  In 

this circumstance, USDOT's interpretation in adopting 49 C.F.R. § 40.321 is entitled to deference 

as a rational reading of the statute within the agency's expertise.  Columbia River Gorge 

Comm'n, 144 Wn.2d at 42-43; Chevron Inc., 467 U.S. at 843.  Accordingly, we reject the 

Foundation's contention that 49 C.F.R. § 40.321 is inconsistent with its underlying statute, 49 

U.S.C. § 5331.  

       C.  Force of Law

       Next, the Foundation argues that a mere regulation cannot support an exemption under 

the PRA.  The Foundation contends that a specific statutory exemption is required.  But none of 

the cases that Foundation relies on13 addresses the circumstance presented in this case, and in 

Ameriquest, where a federal regulation has been promulgated under authority of a federal statute 

to fulfill the statute's directive.  The regulation here, 49 C.F.R. § 40.321, exists with and because 

of its enabling statute, 49 U.S.C. § 5331, and in such circumstance, the federal regulation has the 

13 Foundation relies on the following cases.  Rental Housing Ass'n of Puget Sound v. City of Des 
Moines, 165 Wn.2d 525, 199 P.3d 393 (2009); Bellevue John Does 1-11 v. Bellevue School Dist. 
#405, 164 Wn.2d 199, 189 P.3d 139 (2008); Livingston v. Cedeno, 164 Wn.2d 46, 186 P.3d 
1055 (2008); Amren v. City of Kalama, 131 Wn.2d 25, 929 P.2d 389 (1997); Servais v. Port of 
Bellingham, 127 Wn.2d 820, 904 P.2d 1124 (1995); Progressive Animal Welfare Soc. v. 
University of Washington, 125 Wn.2d 243, 884 P.2d 592 (1994); Brouillet v. Cowles Pub. Co.,
114 Wn.2d 788, 791 P.2d 526 (1990); Spokane Police Guild v. Washington State Liquor Control 
Bd., 112 Wn.2d 30, 769 P.2d 283 (1989); Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 
(1978).  But, as noted, none of these cases address the circumstance presented here.  

                                               12 

No. 41198-9-II

force of law.  

       To have the force and effect of law, the agency pronouncement must (1) prescribe 

substantive rules, and (2) conform to certain procedural requirements.  United States v. Fifty-

Three (53) Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir.1982).  To satisfy the first 

requirement, the rule must be legislative in nature, affecting individual rights and obligations, and 

to satisfy the second, it must have been promulgated under a specific statutory grant of authority 

and conform with the procedural requirements Congress imposed.  Fifty-Three (53) Eclectus 

Parrots, 685 F.2d at 1136.  See also Howard v. City of Burlingame, 937 F.2d 1376, 1380 (9th 

Cir. 1991) (federal regulations have the force of law and may define legal obligations).  

       Here, 49 C.F.R. § 40.321 meets the requirements to have force of law.  It creates 

substantive rights in tested individuals, who must expressly consent to the release of their test 

results.  The regulation was promulgated under the authority of 49 U.S.C. § 5331 and fulfills that 

statute's directive.  And finally, its appearance in the Code of Federal Regulations suggests that 

49 C.F.R. 40.321 was properly enacted and intended to be binding.  Cf. United States v. Alameda 

Gateway Ltd., 213 F.3d 1161, 1168 (9th Cir. 2000) (regulation's absence from Code of Federal 

Regulations or the Federal Register, provides evidence that the regulation was not intended to be 

binding).  Accordingly, 49 C.F.R. § 40.321 has the force of law.  And under Ameriquest, it 

qualifies as an "other statute" exemption under RCW 42.56.070(1) 

III.   USCG Regulations 

       The Foundation also raises an argument for the first time on appeal that the USCG did not 

adopt the USDOT's alcohol testing procedures, and, thus, the confidentiality provisions of 49 

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No. 41198-9-II

C.F.R. § 40.321 do not apply to the alcohol testing of marine employees.  We disagree.14  

       In making this new argument, the Foundation relies on 46 C.F.R. § 16.500 (2009), which 

sets forth what forms are to be used, when, and to whom reports are to be sent regarding the 

reporting and collection of chemical testing data.  See 46 C.F.R. § 16.500(a)-(c).15 The 

Foundation again appears to rely on language taken out of context, since this regulation addresses 

reporting and data collection for purposes of USCG's management information system.  46 

C.F.R. § 16.500 part (a), addressing data collection, states:  

       (a) Data collection.
              (1) All marine employers must submit drug testing program data required 
       by 49 CFR 40.26 and Appendix H to 49 CFR part 40.  
              (2) The provisions in 49 CFR part 40 for alcohol testing do not apply to 
       the Coast Guard or to marine employers, and alcohol testing data is not required 
       or permitted to be submitted by this section. 

The Foundation points to the language of § 16.500 (a)(2) before the comma as establishing that 

the alcohol testing provisions of 49 C.F.R. part 40 do not apply to marine employers, thus, the 

confidentiality provisions of 49 C.F.R. § 40.321 do not apply to the alcohol testing of marine 

employees, and thus, WSDOT had no basis for failing to disclose the alcohol test results in 

14 Normally, we will not consider issues raised for the first time on appeal.  In reviewing the trial 
court's decision on summary judgment, our review "is limited . . . to the evidence and issues 
presented to the trial court.  RAP 9.12."  Bldg. Indus. Ass'n of Wash. v. McCarthy, 152 Wn. 
App. 720, 733-34, 218 P.3d 196 (2009); Sourakli v. Kyriakos, Inc., 144 Wn. App. 501, 509, 182 
P.3d 985 (2008) (an argument neither pleaded nor argued to the trial court cannot be raised for 
the first time on appeal).  But we have inherent authority to consider issues not raised by the 
parties if doing so is necessary to a proper decision as it is here.  Bennett v. Hardy, 113 Wn.2d 
912, 918-19, 784 P.2d 1258 (1990).    

15 The regulation requires that marine employers send reports to the USCG Commandant and 
designates a general USDOT data collection form for that purpose.  See 46 C.F.R. § 16.500(a)-
(c).

                                               14 

No. 41198-9-II

response to the Foundation's public disclosure request.  

       The language in 46 C.F.R. § 16.500(a)(2), in isolation, can be read to support that 

contention.  But this provision addresses only data collection for purposes of the agency's 

management information system and should not be read as the USCG's definitive pronouncement 

on the scope and application of 49 C.F.R. part 40 regarding marine employers'

drug and alcohol testing responsibilities.16  

       In other regulations, as noted below, the USCG expressly incorporates the procedures in 

49 C.F.R. part 40 for marine employers conducting chemical testing after a serious marine 

incident.  USCG regulations specifically require a marine employer to ensure that all persons 

directly involved in a serious marine incident are "chemically tested for evidence of dangerous 

drugs and alcohol in accordance with the requirements of 46 CFR § 4.06." 46 C.F.R. § 16.240 

(2004) (emphasis added).17 A chemical test is defined in 46 C.F.R. § 16.105 (2011), as "a 

scientifically recognized test which analyzes an individual's breath, blood, urine, saliva, bodily 

16 The instructions accompanying the management information system (MIS) reporting form 
advise that USCG-regulated employers do not report alcohol test results on the MIS form.  49 
C.F.R. part 40, Appendix H at 4, 16.  Elsewhere, the USCG explains that marine employers are 
required to submit annual MIS reports documenting the employer's drug testing activities for the 
previous year.  In addressing the scope of the MIS reports, the USCG advises marine employers 
that "Alcohol tests are not required to be submitted on this MIS report as they are reported to 
Coast Guard on a different report form or letter.  They are required to be reported at the time of 
the test event."  See Marine Employers Drug Testing Guidance (What marine Employers Need to 
Know About Drug Testing) Prepared by: U.S. Coast Guard Headquarters, Office of 
Investigations and Analysis (G-MOA), Drug and Alcohol Manager, (June 2005) at 30 available 
at http://www.dot.gov/odapc/testingpubs/Marine_Employers_Drug_ Testing_Guide_2005.pdf 
(last visited January 12, 2012).  

17 46 C.F.R. § 4.06 refers to the USCG's regulations for mandatory chemical testing following 
serious marine incidents involving vessels in commercial service.  See 46 C.F.R. § 4.06-1(b).  

                                               15 

No. 41198-9-II

fluids, or tissues for evidence of dangerous drug or alcohol use." (Emphasis added.)  Subpart B 

of 46 C.F.R. part 16, titled "Required Chemical Testing" specifically provides that, "Chemical 

testing of personnel must be conducted as required by this subpart and in accordance with the 

procedures detailed in 49 CFR part 40."  (Emphasis added.)  Thus, the USDOT workplace 

testing procedures in 49 C.F.R. part 40 have been incorporated to apply to both drug and alcohol 

tests, making both drug and alcohol test results subject to the confidentiality provisions in 49 

C.F.R. § 40.321.  

IV.    Federal Preemption

       WSDOT argues alternatively that, to the extent the PRA's disclosure requirements 

conflict with the confidentiality requirements of 49 C.F.R. § 40.321, the federal regulation 

preempts the PRA.18 The trial court did not reach WSDOT's preemption argument, instead 

granting the agency summary judgment on the basis of RCW 42.56.070(1)'s "other statute"

exemption.  On appeal, WSDOT admits that Ameriquest resolves the matter by determining, as 

the trial court did here, that the federal regulation at issue falls within the "other statute"

exemption of RCW 42.56.070(1).  See 170 Wn.2d at 439-40.  

       Ameriquest rejected a comparable preemption challenge, noting that there was no 

inconsistency with the federal laws at issue and the PRA.  170 Wn.2d at 439.  The federal laws at 

18 Federal preemption of state law may occur in three circumstances: (1) if Congress passes a 
statute that expressly preempts state law, (2) if Congress preempts state law by occupation of the 
entire field of regulation, or (3) if the state law conflicts with federal law due to impossibility of 
compliance with state and federal law or when state law acts as an obstacle to the accomplishment 
of the federal purpose.  Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 
299, 326-27, 858 P.2d 1054 (1993).  WSDOT contends that the third alternative 
(conflict/impossibility/obstacle) operates here.  

                                               16 

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issue provided that state laws would be superseded "'only to the extent of [an] inconsistency.'"  

Ameriquest, 170 Wn.2d at 439 (quoting 15 U.S.C. § 6807(a) and 16 C.F.R. § 313.17(a)).  Our 

Supreme Court held: 

       Although the PRA requires state agencies to 'make available for public inspection 
       and copying all public records,' the PRA provides an exemption to this disclosure 
       requirement if there is any 'other statute which exempts or prohibits disclosure of 
       specific information or records.'     RCW 42.56.070(1).  This other statute 
       exemption avoids any inconsistency and allows the federal regulation's privacy 
       protections to supplement the PRA's exemptions.  

Ameriquest, 170 Wn.2d at 439-40.  The Court noted that the federal law at issue "prohibit[s] 

specific information, not entire records."  Ameriquest, 170 Wn.2d at 440.  "These federal 

regulations are unconcerned with the containers in which the information is found.  Thus, to the 

extent that a record contains unprotected information, the disclosure of which would not violate

the [federal laws at issue], the PRA is not preempted in requiring the record's disclosure."  

Ameriquest, 170 Wn.2d at 440.  

       The same is true here.  Like the federal law at issue in Ameriquest, the underlying federal 

statute here expressly supersedes only "inconsistent" state provisions.  See 49 U.S.C. § 5331(f)(1) 

("A State or local government may not prescribe, issue, or continue in effect a law, regulation, 

standard, or order that is inconsistent with regulations prescribed under this section." (Emphasis 

added.)).  Also, like Ameriquest, the federal regulation here prohibits disclosure of only specific 

information (individual test results), rather than entire records.  Thus, other information that is 

unprotected by the federal regulation may be disclosed under the PRA.  We hold that under these 

circumstances, there is no federal preemption by virtue of RCW 42.56.070(1)'s "other statute"

exemption as applied in Ameriquest.  

                                               17 

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V.     Costs, Fees, and Penalties

       Finally, the Foundation argues that WSDOT's redactions to the responsive records that 

the agency initially provided were overbroad, in that the redactions included more than test 

results.  The Foundation contends that, although WSDOT subsequently provided documents with 

fewer redactions on February 5, 2010, and again after this appeal was filed, the Foundation is 

entitled to costs, attorney fees, and per day penalty assessments for the nondisclosure of the 

requested information from the date of the request until disclosure.  

       WSDOT concedes that its initial responsive documents contained overbroad redactions.  

The agency requests that we remand to the trial court for a determination of costs, fees, and per 

day penalties from November 5, 2009, the date of WSDOT's initial provision of redacted 

responsive documents, until September 30, 2010, when the agency provided documents with 

revised redactions.  We accept WSDOT's concession19 and remand for assessment of costs, fees, 

19 WSDOT's concession is well taken.  The PRA requires the trial court to assess a daily penalty 
where the agency erroneously withholds a requested public record.  Yousoufian v. Office of Ron 
Sims, 152 Wn.2d 421, 440, 98 P.3d 463 (2004); see also Neighborhood Alliance, 172 Wn.2d at 
727 (remedial daily penalty provisions of PRA are triggered when agency fails to properly 
disclose and produce records, and any intervening disclosure serves only to stop the clock on 
daily penalties).  Also, in addition to daily penalties, a party prevailing against an agency in a PRA 
action may be awarded costs and attorney fees.  Neighborhood Alliance, 172 Wn.2d at 725-26
(citing RCW 42.56.550(4)).  As our Supreme Court has explained: 
        "[P]revailing" relates to the legal question of whether the records should have 
       been disclosed on request.  Subsequent events do not affect the wrongfulness of 
       the agency's initial action to withhold the records if the records were wrongfully 
       withheld at that time. Penalties may be properly assessed for the time between the 
       request and the disclosure, even if the disclosure occurs for reasons unrelated to 
       the lawsuit.
Neighborhood Alliance, 172 Wn.2d at 726 (quoting Spokane Research & Defense Fund v. City 
of Spokane, 155 Wn.2d 89, 103-04, 117 P.3d 1117 (2005) (emphasis added in Neighborhood 
Alliance)).  

                                               18 

No. 41198-9-II

and per day penalties on an apportioned basis for redactions of requested information that did not 

qualify as exempt test results under 49 CFR § 40.321, which is incorporated as an "other statute"

exemption under RCW 42.56.070(1), as decided herein.  

VI.    Attorney Fees

       As for fees on appeal, WSDOT contends that we should not award costs and fees on 

appeal to the Foundation unless we determine that the drug and alcohol test results, which 

WSDOT continues to withhold, are not exempt from disclosure.  In reply, the Foundation argues 

that, given WSDOT's concession that its initial redactions were overbroad, and WSDOT's 

production of documents with fewer redactions after the appeal was filed, the Foundation is 

entitled to an apportioned award of costs and fees on appeal as the prevailing party.  

       The Foundation is correct.  A requesting party suing an agency for disclosure of records is 

entitled to a proportional award of fees and costs on appeal regarding those issues on which the 

requester prevailed.  Sanders v. State, 169 Wn.2d 827, 870-71, 240 P.3d 120 (2010).  

Accordingly, we award the Foundation such proportional costs and fees on appeal.  

       In sum, we affirm the trial court's grant of summary judgment to WSDOT on the 

exemption of drug and alcohol test results under the PRA, but we remand for determination of 

costs, fees, and daily penalties in accord with WSDOT's concession, and we award the 

Foundation proportional attorney fees on appeal in an amount to be decided upon the 

Foundation's compliance with RAP 18.1.  

                                            _________________________________

                                               19 

No. 41198-9-II

                                              VAN DEREN, J.

_______________________________
WORSWICK, A.C.J.

                                               20 

No. 41198-9-II

       Quinn-Brintnall, J. (concurring)   --   I concur in the result reached by my colleagues but 

write separately to stress that, absent 49 C.F.R. § 40.321, the drug and alcohol test results of 

public employees working in heavily regulated industries (like common carriers) would be subject 

to the Public Records Act (PRA), ch. 42.56 RCW, under Washington law.  Although I agree that 

summary judgment is proper, I do so not because a federal statute creates an exemption to PRA 

disclosure (which may or may not be asserted by a government agency), but because, here, federal 

law preempts the PRA's  "strongly worded mandate for broad disclosure of public records."  

Neighborhood Alliance of Spokane County v. County of Spokane, 172 Wn.2d 702, 714, 261 P.3d 

119 (2011).  

       Washington's PRA asserts,

       The people of this state do not yield their sovereignty to the agencies that serve 
       them.  The people, in delegating authority, do not give their public servants the 
       right to decide what is good for the people to know and what is not good for them 
       to know.  The people insist on remaining informed so that they may maintain 
       control over the instruments that they have created.  This chapter shall be liberally 
       construed and its exemptions narrowly construed to promote this public policy and 
       to assure that the public interest will be fully protected.  In the event of conflict 
       between the provisions of this chapter and any other act, the provisions of this 
       chapter shall govern.

RCW 42.56.030.  

       Despite this bold language, a later amendment to the PRA, RCW 42.56.070(1), allows a 

government agency to exercise disclosure exemptions for any "other statute which exempts or 

prohibits disclosure of specific information or records." For instance, in Hangartner v. City of 

Seattle, 151 Wn.2d 439, 453, 90 P.3d 26 (2004), our Supreme Court determined that the attorney-

client privilege, codified at RCW 5.60.060(2)(a), was an "other statute" disclosure exemption for 

                                               21 

No. 41198-9-II

purposes of PRA compliance "[b]ecause RCW 5.60.060(2)(a) is unquestionably a statute other 

than RCW 42.17.260(6), 42.17.310, or 42.17.315 that prohibits the disclosure of certain records, 

documents that fall under RCW 5.60.060(2)(a) are exempt from the public disclosure act." Prior 

to our Supreme Court's recent opinion in Ameriquest Mortgage Co. v. Office of Attorney 

General, 170 Wn.2d 418, 241 P.3d 1245 (2010), such "added" exemptions to the PRA were 

limited -- and limited to statutes promulgated by the Washington legislature.  

       Ameriquest dealt with the privacy of nonpublic information in circumstances that were 

decidedly different from those presented by the case before us.  In Ameriquest, the privacy right at 

stake involved the private financial information of ordinary citizens seeking mortgages:  following 

a settlement agreement between the Washington State Office of the Attorney General (AGO) and 

Ameriquest Mortgage Company, a member of the public invoked the PRA in an attempt to obtain 

sensitive financial documents collected by the AGO during its investigation of Ameriquest's 

lending practices.  170 Wn.2d at 424.  The AGO notified Ameriquest that it intended to comply 

with the PRA request.  Ameriquest, 170 Wn.2d at 427.  Ameriquest sought and received an 

injunction against the AGO that barred the release of the citizen customers' private  financial 

information at issue.  Ameriquest, 170 Wn.2d at 428.  

       On direct appeal to this court, the AGO argued that, because it was neither a financial 

institution nor a "nonaffiliated third party," the federal statute at issue there -- the Gramm-Leach-

Bliley Act (the GLBA), 15 U.S.C. § 6801 et seq. -- did not apply to it and that it was required 

under the PRA to disclose the information requested.  Ameriquest Mortg. Co. v. Attorney Gen., 

148 Wn. App. 145, 160-61, 199 P.3d 468 (2009), aff'd, 170 Wn.2d 418 (2010).  At that time, the 

                                               22 

No. 41198-9-II

AGO's argument did not persuade us:

       The GLBA's definition of a "nonaffiliated third party" is purposefully broad to 
       better protect nonpublic customer information from those who would misuse it.  
       On this issue, the AGO is situated no differently than [other nonaffiliated third 
       parties].  We hold that the AGO is a nonaffiliated third party and the GLBA's 
       confidentially provisions apply.  This federal provision prohibiting disclosure of 
       information directly conflicts with Washington's PRA and thus, the GLBA's 
       nondisclosure provisions preempt the PRA.

Ameriquest, 148 Wn. App. at 162 (footnote omitted).  In arriving at this result, we stressed that 

"the GLBA only prohibits release of nonpublic information" and, accordingly, the AGO could still 

release publicly available information in the loan customers' files -- a factual determination the trial 

court needed to address on remand.  Ameriquest, 148 Wn. App. at 165.  

       Our Supreme Court granted review of our decision in Ameriquest  solely to address 

whether "federal law preempts or precludes disclosure of information in the loan files held by the 

Attorney General."   170 Wn.2d at 428-29.  Although the court did not directly overrule our 

decision, it upheld the applicability of the GLBA's nondisclosure provisions on the grounds that, 

having "held numerous other state statutes' disclosure prohibitions are . . . incorporated into the 

PRA," it could "see no reason why federal law should be treated differently."  Ameriquest, 170 

Wn.2d at 440.  In essence, in Ameriquest, our Supreme Court held that a federal statute creates 

an exemption to the PRA.  The majority applies this exemption rationale in its opinion upholding 

summary judgment in this case. 

       It is this exemption creation reasoning from which I depart; the broadly worded intent of 

the PRA should not be read to so easily allow the mere existence of a federal statute to curtail 

access to public information.  Absent a judicial finding of preemption, we should not read a 

                                               23 

No. 41198-9-II

federal statute to create an unintentional if not unwitting exemption to the public's right to access 

its own records.  

       In situations like those presented in Hangartner -- situations where the privacy provisions 

of one law duly enacted by the Washington legislature conflict with the disclosure requirements of 

another duly enacted Washington law (the PRA) -- it is necessary and appropriate to apply RCW 

42.56.070(1) to harmonize the conflicting provisions.  But where privacy provisions of federal 

law conflict with the PRA, requiring a finding of preemption is necessary to safeguard public 

access.  A preemption finding is necessary to assure Washington's citizens that the information is 

being withheld because federal law constrains the disclosure and not by virtue of a judicially 

created PRA exemption that may or may not be asserted by the government agency holding the 

information sought.  Augmenting (or restricting) exemptions to the PRA is a function better left 

to Washington's elected legislators who are presumed to act intentionally to create such an 

exemption with knowledge of its impact.  

       Here, the Freedom Foundation seeks to discover the results of a ferry employee's drug 

and alcohol test following an accident serious enough to cause harm to a passenger.  This is 

exactly the kind of public record citizens need to make informed decisions about the safety and 

security of Washington's common carriers and to decide whether to ride the ferry or not.  Such 

information should be open to public review under the PRA.  RCW 42.56.050 states, 

       A person's "right to privacy," "right of privacy," "privacy," or "personal privacy,"
       as these terms are used in this chapter, is invaded or violated only if disclosure of 
       information about the person:  (1) Would be highly offensive to a reasonable 
       person, and (2) is not of legitimate concern to the public.  The provisions of this 
       chapter dealing with the right to privacy in certain public records do not create any 
       right of privacy beyond those rights that are specified in this chapter as express 
       exemptions from the public's right to inspect, examine, or copy public records.

                                               24 

No. 41198-9-II

       Ferry employees, like other employees engaged in highly regulated industries, are public

employees  responsible to their employer -- the citizens of Washington.  As operators or 

crewmembers of a vehicle transporting the public, ferry employees have a reduced reasonable 

expectation of privacy in their job performance while on duty.  Similar to Washington's law of 

implied consent, under which someone who operates a motor vehicle on Washington highways is 

deemed to have consented to blood and alcohol testing if involved in an injury accident,20 a public 

employee operating or crewing a common carrier may reasonably be required to submit to testing 

designed to determine whether drugs or alcohol impaired their ability to properly perform their 

public job duties and resulted in an injury to a passenger.  

       Absent the federal prohibition on disclosing test results, I question whether a legitimate 

privacy interest exists precluding the release of results of on-the-job drug and alcohol tests given 

public employees following an injury accident involving a common carrier, here a ferry boat.  In 

accord with RCW 42.56.050, although embarrassing, the release of such information is not 

"highly offensive." Moreover, any legitimate discomfort the public employee may experience 

must give way to citizens' legitimate concerns that public employees working in highly regulated 

(and dangerous) fields -- especially fields like the Washington State Ferry System, which 

transports millions of people, tourists, and their vehicles year in and year out -- are not impaired by 

drugs and alcohol in the performance of their job duties.  

       The express provisions of 49 C.F.R. § 40.321, however, preclude the release of the 

information requested here.  Under this provision, Washington State Department of 

20 RCW 46.20.308.

                                               25 

No. 41198-9-II

Transportation (WSDOT) cannot release these records without violating the federal regulations.  

Put more succinctly, here our state law conflicts with federal law and it is impossible for WSDOT 

to comply with both the state and federal law.  Thus, federal law has preempted Washington law 

regarding the release of these records and federal law prohibits WSDOT from releasing them.  See 

Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 326-27, 858 P.2d 

1054 (1993) ("Federal preemption of state law may occur if . . . state law conflicts with federal 

law due to impossibility of compliance with state and federal law or when state law acts as an 

obstacle to the accomplishment of the federal purpose.").  

       Accordingly, I concur only in the result.   

                                            _________________________________
                                            QUINN-BRINTNALL, J.

                                               26