The Washington Supreme Court has ruled 5-4 that a public records requester must be joined in third-party litigation that seeks to block release of the records. The decision, Burt v. Department of Corrections, No. 80998-4 (Wash. May 13, 2010), reversed a Court of Appeals decision holding that a public records requester could be denied the right to participate in such litigation.

As a result of the Supreme Court decision, news organizations and other public records requesters can expect to be joined in lawsuits over their records requests—including, potentially, even in cases in which they do not wish to participate.

Under the Public Records Act (PRA), third parties may sue a public agency to block the release of records that name or refer to them. The requester need not be named in such a suit. A requester has the option of asking the court for permission to participate in such litigation, and such permission typically is granted. But previously, there was no requirement that the requester be informed of the lawsuit or be allowed to participate.

In Burt, a prison inmate asked the Department of Corrections to provide personal information about corrections employees. Eleven of the employees sued the agency, seeking to block the records’ release. The prisoner was not named as a party. The trial court granted the motion to enjoin release of the records, with no objection from the agency.

A month later, the requester moved for intervention, joinder as an indispensable party and reconsideration. The trial court denied all of the motions, and the Court of Appeals affirmed that decision in 2007.

The Supreme Court reversed. The lead opinion, by Justice Charles Johnson, noted that because both the employees and the agency opposed release of the documents, “no party to the action was a proponent of disclosure.” The Court held that, in such situations, under Civil Rule 19(a) the requester is a “necessary party” and must be given the opportunity to present arguments in favor of disclosing the records.

Four justices dissented. Their opinion noted that the prisoner did not seek to participate in the litigation until after a substantive decision had been reached, and stated that he did not show actual prejudice by not being joined. The dissent also pointed out that there may be instances in which a records requestor does not want to be joined—for example, where the requestor does not want the expense of litigation.

Burt does not state whether mandatory joinder of the requester applies in all PRA actions, or only in cases in which no other party is supporting disclosure. At least in the latter situation, the decision should assure that records requesters will be informed in a timely manner when a lawsuit related to their request is initiated.

It is possible, as noted in the dissent, that records requesters may find themselves joined in such lawsuit even when they do not wish to be—but it also seems likely that requesters who wish to opt out of such litigation should be able to do so with a simple filing so informing the court.