Opinion Information Sheet

			

      SUPREME COURT OF THE STATE OF WASHINGTON

MICHAEL W. GENDLER,                         )
                                            )
                      Respondent,           )       NO. 85408-4
                                            )
v.                                          )       EN BANC
                                            )
JOHN R. BATISTE, WASHINGTON)                        Filed April 12, 2012
STATE PATROL CHIEF,                         )
                                            )
                      Petitioner.           )
______________________________ )

       FAIRHURST, J. -- This case involves the Public Records Act (PRA), chapter 

42.56 RCW, and its interplay with two statutes, RCW 46.52.060 and 23 U.S.C. § 

409.  Michael W. Gendler made a public records request for location-specific 

accident reports from the Washington State Patrol (WSP).  The WSP refused to 

provide the records unless Gendler certified that he would not use the records in any 

litigation against the State, claiming a federal statute, 23 U.S.C. § 409, protected the 

records sought.  WSP claimed the records were shielded because they were located 

in an electronic database that the Department of Transportation (DOT) utilized for  

Gendler v. Batiste, No. 85408-4

purposes related to the federal hazard elimination program, 23 U.S.C. § 152.

       Gendler then brought a suit under the PRA and argued § 409 does not apply 

to the WSP because it did not compile or collect the information for § 152 purposes.  

Rather, the information was collected pursuant to WSP's statutory duty under RCW 

46.52.060.  The trial court agreed and, on summary judgment, ordered WSP to 

produce the requested accident reports.  The Court of Appeals affirmed.  We also 

affirm because § 409 does not extend to police accident reports generated and 

received by WSP pursuant to its own statutory duty.  

                    I. FACTUAL AND PROCEDURAL HISTORY

       Gendler was riding his bicycle across Seattle's Montlake Bridge when his 

front wheel was suddenly trapped in a seam on the bridge deck grating.  Gendler

was thrown forward onto the roadway, seriously injuring his spine and rendering 

him quadriplegic.  As a result, he is no longer able to work full time in his law 

practice or live independently.

       Gendler subsequently learned that other bicyclists had been injured after their 

bicycle wheels were jammed in the same manner on the same bridge.  Alarmed by 

these facts, Gendler sought out the history of such incidents by making a public 

records request to the WSP.  Specifically, he requested copies of police reports on 

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Gendler v. Batiste, No. 85408-4

all accidents on the Montlake Bridge involving bicycles.

       The WSP responded that it could not provide accident reports by location and 

that it would provide records to Gendler only if he were able to specifically identify 

the person involved in the collision and the precise collision date.   Gendler was also 

informed that only the DOT was able to produce a historic list of traffic accidents 

based on physical location and referred to a "Request for Collision Data" form that 
would be necessary before the State would fulfill his request.1  Clerk's Papers (CP) 

at 27.

       After locating the form, Gendler discovered it required a certification that he 

would not use the records in a lawsuit against the State or other government agency.  

The exact language from the request form reads, "I hereby affirm that I am not 

requesting this collision data for use in any current, pending or anticipated litigation 

against a state, tribal or local government involving a collision at the location(s) 

mentioned in the data."  Id. This certification is purported to be in accordance with 

23 U.S.C. § 409, a limited federal privilege that protects from discovery certain 

records  that  the  states  create and compile for federal highway safety reporting 

purposes.  Gendler was unwilling to submit this certification, explaining:

       Because I do not want to waive my right to use public records 

       1The request form is submitted to the DOT, although it is located on the WSP web site 
and contains the official WSP logo.
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Gendler v. Batiste, No. 85408-4

       including reports of bicycle accidents on the Montlake Bridge in a civil 
       lawsuit to hold the State accountable for its negligence, I cannot sign 
       the public record request form.  But I also do not want to waive my 
       right as a citizen to have access to these public records to promote my 
       ability to become fully informed about the history of this bridge and 
       about the conduct of the governmental agency or agencies responsible 
       for providing a reasonably safe road.

CP at 24. The State refused to provide the records because Gendler would not sign 

the form.  

       Consequently, Gendler filed a complaint against John Batiste, chief of the 

WSP, in Thurston County Superior Court for violation of the PRA.  WSP asserted 

that the requested records had been scanned and entered into a database created and 

compiled for federal highway safety reporting purposes and were therefore 

protected under 23 U.S.C. § 409.  The trial court allowed the DOT to intervene, 

granting it party status as a codefendant because it collected, analyzed, and 

maintained the records sought and because WSP claimed only the  DOT could 

produce them.

       Both sides moved for summary judgment on the sole issue of WSP's legal 

obligation to provide the reports requested by Gendler.  After hearing argument, the 

trial court issued a memorandum decision concluding that state troopers completed 

accident reports pursuant to their duty under RCW 46.52.060 to file, analyze, and 

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Gendler v. Batiste, No. 85408-4

publish statistical information about accidents.  The trial court further reasoned that 

23 U.S.C. § 409 did not protect these reports because they were completed for 

purposes unrelated to federal highway safety funding obligations.  Accordingly, the 

trial court granted summary judgment to Gendler and ordered WSP to produce the 

public records.2

       The Court of Appeals affirmed.  Gendler v. Batiste, 158 Wn. App. 661, 242 

P.3d 947 (2010).  We granted the State's petition for review, Gendler v. Batiste, 

171 Wn.2d 1001, 249 P.3d 181 (2011), and now affirm.      

                                          II. ISSUE

       Where the WSP has a statutory duty to file, tabulate, and analyze accident 

reports under RCW 46.52.060, does 23 U.S.C. § 409 protect the WSP against 

unconditional disclosure of those reports under the PRA because the data is also 

collected or compiled by the DOT pursuant to the federal hazard elimination 

program, 23 U.S.C. § 152? 

                                       III. ANALYSIS

       Resolution of this case requires analysis of the interplay between three 

       2Gendler brought a separate tort action against the State for his injuries that has been 
settled.  See State Suppl. Br. at 3 & n.1.
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Gendler v. Batiste, No. 85408-4

primary statutes:  (1) The PRA, chapter 42.56 RCW; (2) RCW 46.52.060 (WSP's 

duty); and (3) 23 U.S.C. § 409 (limited federal privilege).  The PRA requires the 

WSP to disclose all public records upon request, including data from accident 

reports collected pursuant to its statutory duty.  We hold § 409 is inapplicable to the 

WSP in this context because WSP collected and compiled the reports pursuant to 

RCW 46.52.060, and not for a § 152 purpose.

A.     PRA

       The PRA requires state and local agencies to disclose all public records upon 

request, unless the record falls within a PRA exemption or other statutory 

exemption.  RCW 42.56.070(1); Progressive Animal Welfare Soc'y v. Univ. of 

Wash., 125 Wn.2d 243, 250, 884 P.2d 592 (1994) (PAWS).                    We review agency 

actions taken or challenged under the PRA de novo.  RCW 42.56.550(3); Spokane 

Police Guild v. Wash. State Liquor Control Bd., 112 Wn.2d 30, 34-35, 769 P.2d 

283 (1989).  

       The PRA is regularly referred to as "a strongly worded mandate for broad 

disclosure of public records."  Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 

P.2d 246 (1978);   Yakima v. Yakima Herald-Republic, 170 Wn.2d 775, 790, 246 

P.3d 768 (2011). Its underlying policy is evidenced by RCW 42.56.030:

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Gendler v. Batiste, No. 85408-4

       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 court has also stated that the PRA's intent is

       nothing   less than the preservation of the most central tenets of 
       representative government, namely, the sovereignty of the people and 
       the accountability to the people of public officials and institutions. 
       [Former]  RCW 42.17.251 [(1992),  recodified as RCW 42.56.030].
       Without tools such as the Public Records Act, government of the 
       people, by the people, for the people, risks becoming government of 
       the people, by the bureaucrats, for the special interests.  In the famous 
       words of James Madison, "A popular Government, without popular 
       information, or the means of acquiring it, is but a Prologue to a Farce 
       or a Tragedy; or, perhaps both." Letter to W.T. Barry, Aug. 4, 1822, 9 
       The Writings of James Madison 103 (Gaillard Hunt, ed. 1910).

PAWS, 125 Wn.2d at 251.  

       In order to promote this policy and protect the public interest, the PRA is to 

be "liberally construed and its exemptions narrowly construed."  RCW 42.56.030.

Courts are also required to "take into account the policy . . . that free and open 

examination of public records is in the public interest, even though such examination 

may cause inconvenience or embarrassment to public officials or others."  RCW 

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Gendler v. Batiste, No. 85408-4

42.56.550(3).

       "'Public record'" is defined broadly to include "any writing containing 

information relating to the conduct of government or the performance of any 

governmental or proprietary function prepared, owned, used, or retained by any 

state or local agency regardless of physical form or characteristics."  

Former RCW 42.17.020(42) (2008). It has long been recognized that administrative 

inconvenience or difficulty does not excuse strict compliance with public disclosure 

obligations.  Hearst Corp., 90 Wn.2d at 131-32; RCW 42.56.550(3).  However, 

"An agency has no duty to create or produce a record that is nonexistent."  Sperr v. 

City of Spokane, 123 Wn. App. 132, 136-37, 96 P.3d 1012 (2004).                    The record 

sought must also be reasonably identifiable.  Id. at 137.

       If there is any dispute over a government agency's obligation to disclose 

public records, the burden of proof is "on the agency to establish that refusal to 

permit public inspection and copying is in accordance with a statute that exempts or 

prohibits disclosure in whole or in part of specific information or records."  RCW 

42.56.550(1); Spokane Police Guild, 112 Wn.2d at 35.              There is no dispute in this 

case that WSP and DOT are subject to the PRA as state agencies.  See former RCW 

42.17.020(2)    (2008)    ("'State agency' includes every state office, department, 

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Gendler v. Batiste, No. 85408-4

division, bureau, board, commission, or other state agency.").  

       The WSP also admitted in its answer that the accident reports sought by 

Gendler are public records.  CP at 13. This was not disputed at either the trial court 

or Court of Appeals.  Yet, the State now argues in its petition for review that the 

records are confidential under RCW 46.52.080, which provides that "accident 

reports and supplemental reports and copies thereof shall be without prejudice to the 

individual so reporting and shall be for the confidential use of the . . . chief of the 

Washington state patrol."  

       This argument is without merit.  In Guillen v. Pierce County, we 

distinguished between reports submitted by motorists that were confidential and 

reports submitted by law enforcement officers that were not.  144 Wn.2d 696, 713-

15, 31 P.3d 628, 34 P.3d 1218 (2001) (Guillen I), rev'd on other grounds, 537 U.S 

129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003) (Guillen  II).  We ruled police 

accident reports are subject to disclosure under the PRA.  Id.  We noted that 

citizens are entitled to disclosure of certain "raw data" from motorists' reports, 

including the number, frequency, and circumstances of accidents occurring at a 

particular location.  Id. at 715 n.8.  Gendler seeks only reports submitted by law 

enforcement officers.  CP at 416.        Those reports are not confidential under RCW 

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Gendler v. Batiste, No. 85408-4

46.52.080.  

       Accordingly, Gendler properly requested disclosure of public records from 

WSP, a state agency.  

B.     WSP's Statutory Duty

       Since 1937, with the enactment of Washington's motor vehicle act, Title 46 

RCW, law enforcement officers in this state have been required to prepare accident 

reports for accidents on state highways.  RCW 46.52.030 (Laws of 1937, ch. 189, § 

135).   Drivers involved in collisions may also submit a vehicle collision report.  

RCW 46.52.030(1).        These reports are compiled and collected pursuant to RCW 

46.52.060 (Laws of 1937, ch. 189, § 138) of the motor vehicle act, which imposes a 

duty on the chief of the WSP to

       file, tabulate, and analyze all accident reports and to publish annually, 
       immediately following the close of each fiscal year, and monthly during 
       the course of the year, statistical information based thereon showing 
       the number of accidents, the location, the frequency, whether any 
       driver involved in the accident was distracted at the time of the 
       accident and the circumstances thereof, and other statistical 
       information which may prove of assistance in determining the cause of 
       vehicular accidents.

These reports must then be made available to the DOT "for further tabulation and 

                                              10 

Gendler v. Batiste, No. 85408-4

analysis for pertinent data relating to the regulation of highway traffic, highway 

construction, vehicle operators and all other purposes."  Id.  

       The record in this case establishes that WSP provided accident reports 

collected pursuant to the above statutory duty on request for many years.  CP at 

295.  WSP was also able to, and did, provide reports of accidents that occurred at 

the same location.  Id.      The basic process of the WSP involved receiving paper 

accident reports and then sorting the reports' reference numbers by city street names 

and five-digit county road reference numbers.  CP at 305. Thus, if a citizen wanted 

reports from accidents occurring at a specific location, he or she would provide the 

WSP with the street name or county road reference (available through the county 

engineer).  CP at 304-05.      The WSP would then search the paper reports to obtain 

the collision report numbers specific to the identified location.  CP at 305.

       The State asserts that, under this system, it was not possible for the WSP to 

produce an "accurate" list of location-specific accident reports.  See, e.g., Pet. for 

Review at 9, 13.       It is unclear exactly what the State deems accurate, but this 

assertion may be evaluated in light of the DOT's current ability to narrow accident 
locations down to 1/100of a mile or roughly 50 feet.3  CP at 195. In any event, it is 

       3The Montlake Bridge is 345 feet long, according to a recently published DOT technical 
manual.  See  Wash.  State Dep't of Transp., Bridge List M 23-09.05, at 377 (Oct. 2011), 
http://www.wsdot.wa.gov/publications/manuals/m23-09.htm.
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Gendler v. Batiste, No. 85408-4

undisputed that these reports, however accurate or burdensome, were provided upon 

request to members of the public for several years.  The State's own public records 

officer explained in a deposition in response to such requests that before 2003 she 

"would roll out a big long bunch of paper reports and try to find every reference to 

that particular street I could" but that it was "time-consuming."  CP at 305.

       This process changed in 2003 after the United States Supreme Court decided 

Guillen II, limiting the scope of the federal privilege allowed by 23 U.S.C. § 409.  

That case and the State records policy that followed are discussed below.

C.     Limited Federal Privilege

       In 1966, the United States Congress adopted the Highway Safety Act to 

improve highway safety by encouraging closer federal and state cooperation with 

respect to road improvement projects.  23 U.S.C. § 402.             As part of this effort to 

improve the nation's highways, Congress also adopted the hazard elimination 

program in 1973.  23 U.S.C. § 152.           Under this program, state governments are 

provided federal funding to improve the most dangerous sections of their roads.  Id.  

To be eligible for the funding, states are required to systematically undertake a 

thorough evaluation of their public roads.  Id.  Specifically, states must

       conduct and systematically maintain an engineering survey of all public 
       roads to identify hazardous locations, sections, and elements, including 

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Gendler v. Batiste, No. 85408-4

       roadside obstacles and unmarked or poorly marked roads, which may 
       constitute a danger to motorists, bicyclists, and pedestrians, assign 
       priorities for the correction of such locations, sections, and elements, 
       and establish and implement a schedule of projects for their 
       improvement. 

23 U.S.C. § 152(a)(1).  

       This program raised concerns among the states because the increased self-

reporting of data increased the risk of tort liability.  See Guillen II, 537 U.S. at 133-

34.  In 1987, Congress enacted 23 U.S.C. § 409 at least in part to address these 

concerns.  Section 409 generally provided that information compiled by states 

pursuant to 23 U.S.C. § 152 could not be admitted into evidence in any action for 

damages. The statute was amended in 1991 to add that such information may not be 
the subject of discovery.4 Today, § 409 reads:

              Notwithstanding any other provision of law, reports, surveys, 
       schedules, lists, or data compiled or collected for the purpose of 
       identifying, evaluating, or planning the safety enhancement of potential 
       accident sites, hazardous roadway conditions, or railway-highway 
       crossings, pursuant to sections 130, 144, and 148[5] of this title or for 
       the purpose of developing any highway safety construction 

       4Guillen I, 144 Wn.2d at 717-24, provides a detailed account of the history surrounding § 
409.  
       52005 amendments (Pub. L. No. 109-59, § 1401(1)(3)(C), 119 Stat. 1144, 1225) to § 409 
struck "152" and inserted "148."  Section 1401 also eliminated the hazard elimination program 
under 23 U.S.C. § 152, and incorporated it into § 148 for purposes of certain federal funding 
programs.  But the authorization for the federal funding resides in 23 U.S.C. § 152, and § 152 has 
not been repealed.  H.R. Rep. No. 109-203, at 861-62 (2005), reprinted in 2005 U.S.C.C.A.N. 
452, 482-84.  The parties and the Court of Appeals refer only to § "152."  
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Gendler v. Batiste, No. 85408-4

       improvement project which may be implemented utilizing Federal-aid 
       highway funds shall not be subject to discovery or admitted into 
       evidence in a Federal or State court proceeding or considered for other 
       purposes in any action for damages arising from any occurrence at a 
       location mentioned or addressed in such reports, surveys, schedules, 
       lists, or data.

       1.     Guillen II

       The United States Supreme Court limited the scope of this protection in 

Guillen II.  That case arose from Ignacio Guillen's request for accident reports and 
other materials and data under our state's PRA6 at the location of an intersection 

where his wife was killed in an automobile accident.  Guillen II, 537 U.S. at 136.  

When Pierce County refused to provide any responsive information, Guillen brought 

an action for violation of the PRA.  Id.  Like the WSP in this case, the county 

attempted to justify its refusal by claiming the accident reports were privileged 

under § 409 because another agency, the public works department, collected the 

records for a purpose related to § 152.  Guillen II, 537 U.S. at 136.  The Court 

disagreed.

       Three different interpretations were argued.  The county argued that a 

       6In 2005, the legislature recodified and renamed the public disclosure act (PDA), former 
chapter 42.17 RCW (1973), as the Public Records Act (PRA), chapter 42.56 RCW.  Laws of
2005, ch. 274, § 103. While Guillen (I and II) arose under the PDA, for clarity, we refer to the 
statute as the PRA.

                                              14 

Gendler v. Batiste, No. 85408-4

document initially prepared and held by an agency for purposes unrelated to § 152 

became protected under § 409 when a copy of that document was collected by 

another agency for purposes of § 152.  Guillen  II, 537 U.S. at 143.  Guillen 

countered that § 409 protected only materials actually created by the agency 

responsible for compliance with § 152.  Guillen II, 537 U.S. at 144.  

       The United States, as intervenor, proposed a third interpretation that was 

adopted by the Court:  "§ 409 protects only information compiled or collected for § 

152 purposes, and does not protect information compiled or collected for purposes 

unrelated to § 152, as held by the agencies that compiled or collected that 

information."  Guillen II, 537 U.S. at 146.  The Court explained that this was the 

proper scope of the rule because it was broad enough to encompass information 

collected from other agencies for § 152 purposes, while at the same time taking "a 

narrower view of the privilege by making it inapplicable to information compiled or 

collected for purposes unrelated to § 152 and held by agencies that are not pursuing 

§ 152 objectives." Guillen II, 537 U.S. at 145-46.  The Court also held § 409 was 

an evidentiary privilege and, as such, "must be construed narrowly because 

privileges impede the search for the truth."  Guillen II, 537 U.S. at 144.  

       Under this rule, "an accident report collected only for law enforcement 

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Gendler v. Batiste, No. 85408-4

purposes and held by the county sheriff would not be protected under § 409" even if 

the same report was held by another agency that obtained the report for § 152 

purposes.  Guillen II, 537 U.S. at 144.  This approach is consistent with the purpose 

of § 409 because the statute is not intended to make tort victims worse off than they 

would have been had § 152 never existed.  Guillen II, 537 U.S. at 146.  In other 

words, 

       there is no reason to interpret § 409 as prohibiting the disclosure of 
       information compiled or collected for purposes unrelated to § 152, held 
       by government agencies not involved in administering § 152, if, before 
       § 152 was adopted, plaintiffs would have been free to obtain such 
       information from those very agencies.

Id.
       2.     Memorandum of Understanding

       Months after the decision in Guillen II was published, WSP and DOT entered 

into a memorandum of understanding (MOU) pursuant to the Interlocal Cooperation 

Act, chapter 39.34 RCW.  See CP at 205-07 (MOU).  The Interlocal Cooperation 

Act allows state agencies to exercise their respective authority jointly and 

cooperatively.  RCW 39.34.030(2).           However, "No agreement made pursuant to 

th[e Act] relieves any public agency of any obligation or responsibility imposed 
upon it by law."  RCW 39.34.030(5).7  

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Gendler v. Batiste, No. 85408-4

       The MOU provides that DOT is to maintain all accident reports in its 

database.  CP at 205.     It does not explicitly reference the § 152 hazard elimination 

program, but the State asserts the DOT collects the data for purposes of compliance 

with the program.  See,  e.g., Pet. for Review at 7.                To this end, the DOT 

implemented a uniform accident report form that contains specific data points 

required under § 152.  CP at 194.        This form is now filled out by law enforcement 

officers at the scene of a collision.  Id.  The WSP then scans the accident report into 

the DOT computer system and destroys the paper originals.  CP at 205.                       The 

scanned image is then deemed to be the "report of record."  Id.  

       With respect to funding, both parties reference 2003 legislative budget notes, 

wherein the WSP and DOT are encouraged to enter into an interagency agreement 

for reimbursement to DOT for the accident report activities previously performed by 

WSP.  See Washington State Legislative Budget Notes: 2003-05 Biennium and 

2003 Supplemental, Program T-Transportation Planning, Date, & Research cmt. 8, 

at 388 (Oct. 2003), http://lead.leg.wa.gov/ leap/budget/index_lbns.asp.   We note 

that this document is not law but a publication of various  House and Senate 

committees, prepared with the assistance of the Legislative Evaluation and 

Accountability Program Committee, and intended to  provide detail for enacted 

       7This limitation is subject to certain exceptions, not applicable to this case.  See RCW 
39.34.030(5)(a)-(b).  
                                              17 

Gendler v. Batiste, No. 85408-4

budgets.  The referenced note specifically stated, "It is the intent of the Legislature 

that funding the costs associated with the collection, compilation, tabulation, 

analysis, and publication of accident reports, police officer and investigator reports . 

. . shall not impair or impinge on any party's rights under the state [PRA]."  Id.  cmt. 

13 at 389.  At least according to the budget notes, the reappropriation of funds was 

not intended to affect any citizen's rights under the PRA.  

       Furthermore, the MOU does not limit WSP's access to, or use of, the reports.  

CP at 205-07.   Rather, the MOU establishes that the original reports and the 

scanned images remain the property of the WSP.  CP at 206. The "[d]ata collected 

and tabulated" by the DOT, however, is considered to be the property and 

responsibility of the DOT.  Id.  When a request is made for multiple accident reports 

"based solely on a location," it is treated as a request for data and is referred to the 

DOT.  CP at 209.           Before receiving the reports, the requester must sign a 

certification that he or she will not use the reports in any litigation against the state, 

tribal, or local government involving a collision at the location in question.  CP at 

27.  

       Based on this arrangement, the State claims the reports requested by Gendler 

are privileged under § 409 because they are compiled or collected by the DOT 

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Gendler v. Batiste, No. 85408-4

pursuant to its § 152 federal highway safety reporting obligation.  We disagree.

D.     Gendler's Request for Public Records

       The trial court correctly ordered the WSP to provide copies of the accident 

reports upon Gendler's request without the State's limitation.  WSP has a long

standing duty to "file, tabulate, and analyze all accident reports."  RCW 46.52.060.  

The accident reports sought by Gendler were existing, identifiable public records, 

subject to disclosure under the PRA.  The issue is whether federal law stands in the 

way.

       To determine whether § 409 applies, the relevant inquiry is whether the 

information was compiled or collected, and held, by an agency for purposes 

unrelated to § 152.      Guillen II, 537 U.S. at 146.         While the PRA is construed 

broadly to promote open government, this limited federal privilege is narrowly 

construed because it impedes the search for truth.  Accordingly, we hold § 409 is 

inapplicable to the WSP in this context because it collected and compiled the 

reports pursuant to RCW 46.52.060 and not for a § 152 purpose.

       The Court of Appeals correctly noted the State fails to explain how the 

county sheriff in Guillen is any different from the WSP in this case, or how the 

public works department is any different from the DOT.  See Gendler, 158 Wn. 

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Gendler v. Batiste, No. 85408-4

App. at 674.  The records, when held by the WSP, are not privileged as they would 

be  if held by the DOT because each agency collects and uses the records for 

different purposes.  

       The MOU cannot alter the WSP's obligations under RCW 46.52.060.  See 

RCW 39.34.030(5).  Furthermore, the language of the MOU itself supports 

Gendler's position.  It confirms that the reports remain the property of the WSP, 

regardless of form, and that the WSP is not limited in its access to or use of the 

reports.  CP at 205-07. The fact that DOT is granted joint access to and use of the 

reports for its own purpose does not change the character of the reports or divest 

WSP of its authority or ability to produce them.  Indeed, the WSP continues to own 

even the scanned image of the accident report.  CP at 205-06.                 These facts are 

sufficient to conclude that the WSP continues to "hold" the records, even though 

they reside in a joint database.

       Nor does the type of form utilized by the WSP transform collection of the 

information into a joint WSP-DOT § 152 purpose.  While the form was designed to 

include many categories of information needed by the DOT, which the WSP does 

not ultimately use, it is nevertheless filled out by law enforcement officers for 

WSP's own statutory purpose.  

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Gendler v. Batiste, No. 85408-4

       A remarkably similar scenario was addressed in Goza v. Parish of W. Baton 

Rouge, 2008-0086 (La. App. 1 Cir. 5/5/09), 21 So. 3d 320, cert. denied, 130 S. Ct. 

3277 (2010).      In that case, an injured motorist sued the state's department of 

transportation and development (DOTD), alleging a design defect of a highway 

curve.  Id. at 325.     The DOTD relied on § 409 and sought to exclude from the 

matter accident reports related to the location.  Goza, 21 So. 3d at 326. The DOTD 

created the accident report form and trained local law enforcement officers to 

properly complete the form to fulfill its obligations under § 152.  Goza, 21 So. 3d at 

328.   However, as in this case, the law enforcement officers also compiled and 

collected information contained on the form pursuant to its own statutory duty to 

investigate and report accidents.  Id.  Applying Guillen II, the Goza court held § 

409 did not apply because the records were compiled or collected for a purpose 

unrelated to § 152.  As the court reasoned:

       To the extent that law enforcement accommodates the DOTD by 
       adopting the uniform accident report forms designed by the DOTD for 
       use in accident investigation, such action alone is insufficient to 
       transform the normal accident investigation duties of local law 
       enforcement agencies into an act of "information compilation and 
       collection for § 152 purposes." As such, we find no merit in the 
       DOTD's argument that the mere completion of the form designed by 
       the DOTD, and completed in accordance with training provided by the 
       DOTD, makes the completion of an accident report by local law 
       enforcement officials an act of compiling or collecting information for § 
       152 purposes.

                                              21 

Gendler v. Batiste, No. 85408-4

Goza, 21 So. 3d at 328. This is the appropriate analysis, and we adopt it here.  As 

in Goza, the WSP and DOT are acting together in some respects, but their purposes 

are separate.  

       It is also significant that long before the creation of the database, WSP was 

searching its reports and finding and disclosing information like that requested by 

Gendler.  WSP now claims it cannot search reports by a specific location without 

the analysis performed by DOT.  However, the fact that WSP has chosen to relocate 

its records into a database that is subsequently analyzed in greater detail by the 

DOT, does not relieve it of its obligation to produce the records upon request.  The 

trial court correctly ruled in its memorandum decision that "[i]f  anything, these 

documents currently should be more available to the public, just as they are more 

available to the agencies who manage the database."  CP at 322.  

       This reasoning is consistent with our Washington State Access to Justice 

Technology Principles (hereinafter  AJT), http://www.courts.wa/gov/court_rules/.  

These principles apply to all courts of law and serve as a guide for all other actors in 

our state justice system.  AJT, scope.         The AJT preamble declares, "The use of 

technologies in the Washington State justice system must protect and advance the 

fundamental right of equal access to justice.  There is a particular need to avoid 

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Gendler v. Batiste, No. 85408-4

creating or increasing barriers to access."  ATJ, pmbl.  "'Technology'" includes "all 

mechanisms and means used for the production, storage,  retrieval, aggregation, 

transmission, communication, dissemination, interpretation, presentation, or 

application of information." AJT, scope (emphasis added).  "[A]ccess to justice"

means the meaningful opportunity to acquire information necessary to assert a claim 

or defense.  AJT, pmbl.  WSP cannot shield otherwise disclosable accident reports 

under the guise of § 409 by depositing them in a forbidden DOT electronic 

database.  Permitting this would fly in the face of our well grounded principle that 

technology should enhance access to information that is necessary for justice, not 

create barriers.   

       WSP's interpretation of the MOU and § 409 is also contradictory to Guillen 

II.  That decision made clear that § 409 was not intended to make tort victims any 

worse off than they would have been before the § 152 hazard elimination program.  

The WSP's duty to generate these accident reports predates the federal program by 

36 years.  Until 2003, citizens have been able to request and receive copies of 

accident reports specific to a location.  The State now asks us to place Washington 

citizens in a worse position than they would have been before § 152.  The State's 

argument is rejected.  It is inconsistent with Guillen II and the intent of § 409.

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Gendler v. Batiste, No. 85408-4

       Section 409 does not extend to police accident reports generated and received 
by WSP pursuant to its own statutory duty.8 The WSP's shared database with DOT 

does not alter this duty or its obligations under the PRA.  The Court of Appeals 

correctly affirmed the trial court's order to produce the reports without limitation 

upon Gendler's request.  We hereby affirm the Court of Appeals and the trial court.

E.     Gendler's Attorney Fees

       The prevailing party in an action against a state agency to obtain access to a 

public record is entitled to costs, including reasonable attorney fees.  RCW 

42.56.550(4).     "Attorney fees incurred on appeal are included" in this provision.  

PAWS, 125 Wn.2d at 271.  To be awarded attorney fees or expenses on review 

before this court, the party must make the request in its opening brief.  RAP 18.1(b).  

Additionally, "Requests made at the Court of Appeals will be considered as 

continuing requests at the Supreme Court."  Id.  Because we affirm both the trial 

       8The dissent would remand the case to the trial court to take further evidence on the 
factual issue of whether the WSP compiled the data in question to comply with its duty under 
RCW 46.52.060.  This is unnecessary.  RCW 46.52.060 requires the WSP to collect accident 
reports, identifying accidents by location.  This duty predates § 152, and it is undisputed the 
accident reports were available to the public, however accurate, before the hazard elimination 
program.  See  CP at 304-05 (state public records officer explaining WSP provided accident 
reports based on street name or county road reference).  The fact that the DOT and WSP have 
consolidated the collection process through the implementation of a more detailed form does not 
negate the WSP's independent statutory duty.  The record substantially supports the conclusion 
that the WSP collected the information sought by Gendler to comply with this duty.

                                              24 

Gendler v. Batiste, No. 85408-4

court and Court of Appeals, Gendler is the prevailing party in this action to obtain 

access to a public record.  Gendler also specifically requested his attorney fees and 

costs in his opening  brief at the  Court of Appeals.  See  Br. of Resp't at 40.  

Accordingly, we hereby award Gendler his reasonable attorney fees and costs, to be 

determined by the commissioner or clerk in accordance with RAP 14.6. 

                                    IV.  CONCLUSION

       The WSP has an independent statutory duty under RCW 46.52.060 to "file, 

tabulate, and analyze" accident reports and to annually publish statistical 

information showing, among other things, the location of such accidents.  The PRA 

requires the WSP to disclose all public records upon request, including data from 

accident reports collected pursuant to its statutory duty.  We hold § 409 is 

inapplicable to the WSP in this context because it collected and compiled the 

reports pursuant to RCW 46.52.060, and not for a § 152 purpose.                  We therefore 

affirm the trial court and Court of Appeals and award Gendler his reasonable 

attorney fees and costs on appeal.

AUTHOR:
        Justice Mary E. Fairhurst

                                              25 

Gendler v. Batiste, No. 85408-4

WE CONCUR:
        Chief Justice Barbara A. Madsen

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Gerry L. Alexander, Justice Pro Tem.

        Justice Susan Owens

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