Richard Lindeman et al., Petitioners, v. Kelso School District No. 458, Respondent, 162 Wash. 2d 196

¶1 Owens, J. A surveillance videotape installed on a public school bus recorded an altercation between two students. When parents Richard and Ginger Lindeman (Lindemans) sought access to the videotape through a public disclosure request, Kelso School District No. 458 (District) denied the request on the basis that the videotape was exempt under former RCW 42.17.310(1)(a) (2003) (hereinafter “student file exemption”). The trial court agreed that the videotape was exempt under the student file exemption, and the Court of Appeals affirmed.

We reverse the Court of Appeals and hold that the District must disclose the videotape. FACTS ¶2 On October 8, 2003, a surveillance video camera installed on a public school bus recorded an altercation between two elementary school students. On the same day, the District allowed the Lindemans, parents of one of the students, to view the videotape of the altercation. Thereafter, the Lindemans sent a letter to the District requesting a copy of the videotape. The District denied the request on the basis that the videotape was exempt from public disclosure.

The Lindemans sent a formal request seeking disclosure of the videotape under the former public disclosure act (PDA),

chapter 42.17 RCW, recodified as

chapter 42.56 RCW (Laws of 2005, ch. 274). The District again denied the request. ¶3 The Lindemans subsequently filed an action in Cowlitz County Superior Court, alleging the District violated the PDA by failing to disclose the videotape. The Lindemans sought an order requiring the District to disclose the videotape and an award of attorney fees, costs, and penalties under the PDA. After holding a show cause hearing, the trial court held that the videotape was exempt from disclosure under the PDA.

The trial court reached this conclusion after finding that “[t]he school bus surveillance video tape contains information that would allow a viewer to identify a student” and “[t]he tape was maintained by the district for potential discipline.” Clerk’s Papers at 91. Accordingly, the court dismissed the Lindemans’ claim and awarded costs to the District. The Court of Appeals affirmed. Lindeman v. Kelso Sch. Dist. No. 458, 127 Wn. App. 526, 111 P.3d 1235 (2005). We granted review. Lindeman v. Kelso Sch. Dist. No. 458, 156 Wn.2d 1006, 132 P.3d 146 (2006).

ISSUE ¶4 Did the District satisfy its burden of establishing that former RCW 42.17.310(1)(

a) exempts the surveillance videotape from public disclosure? ANALYSIS A. Standard of Review ¶5 In reviewing a PDA request, we stand in the same position as the trial court. Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994). Judicial review of the agency’s decision to withhold the records is de novo. Former RCW 42.17.340(3) (1992). B. The Student File Exemption ¶6 The PDA requires state and local agencies to disclose all public records upon request, unless the record falls within a specific exemption. Former RCW 42.17.260(1) (1997).

An agency withholding public records bears the burden of proving the applicability of a statutory exemption. Former RCW 42.17.340(1). In determining whether the PDA requires disclosure, we must liberally construe its public records provisions and narrowly construe its exemptions. Former RCW 42.17.251 (1992). ¶7 The parties do not dispute that the videotape is a “public record” and the District is an “agency” within the meaning of the PDA. Thus, the District must disclose the videotape unless a statutory exemption applies.

The District refused the Lindemans’ disclosure request under the student file exemption, which exempts from disclosure “[p]ersonal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.” Former RCW 42.17.310(1)(a). ¶8 We fulfill the PDA’s directive to construe the exemption narrowly by giving full effect to the words in the statute.

Therefore, we must examine the meaning of “personal information” and “in any files maintained for students.” “ ‘This court has the ultimate authority to determine the meaning and purpose of a statute.’ ” State v. Sullivan, 143 Wn.2d 162, 174, 19 P.3d 1012 (2001) (internal quotation marks omitted) (quoting State v. Alvarez, 128 Wn.2d 1, 11, 904 P.2d 754 (1995)). In the absence of a statutory definition, we may ascertain the plain and ordinary meaning of unambiguous statutory terms by resorting to a dictionary. Id. at 175. ¶9 The PDA does not define “personal information.” The dictionary provides several

definitions of “personal,” including the following: “of or relating to a particular person,” “affecting one individual or each of many individuals,” “peculiar or proper to private concerns,” and “not public or general.” Webster’s Third New International Dictionary 1686 (2002). Mindful that the PDA requires exemptions to disclosure be construed narrowly, information peculiar or proper to private concerns constitutes personal information for purposes of the student file exemption, as are employee evaluations. Dawson v.

Daly, 120 Wn.2d 782, 797, 845 P.2d 995 (1993). f 10 Moreover, we disagree with the Court of Appeals’ conclusion that personal information is not modified “in any manner, suggesting that any and all personal information from agencies and institutions that fall under this subsection is exempt from public disclosure.” Lindeman, 127 Wn. App. at 539-40. The student file exemption does not exempt any and all personal information — it exempts only personal information “in any files maintained for students in public schools.” Former RCW 42.17.310(1)(a).

Thus, we construe the student file exemption narrowly, in accordance with the directive of the PDA, by exempting information only when it is both “personal” and “maintained for students.” ¶11 The phrase “files maintained for students in public schools” denotes the collection of individual student files that public schools necessarily maintain for their students.

The student file exemption contemplates the protection of material in a public school student’s permanent file, such as a student’s grades, standardized test results, assessments, psychological or physical evaluations, class schedule, address, telephone number, Social Security number, and other similar records. See Weems v. N. Franklin Sch. Dint., 109 Wn. App. 767, 37 P.3d 354 (2002) (referring passim to “student files” and “a student’s file”). f 12 Here, the surveillance camera serves as a means of maintaining security and safety on the school buses.

The videotape from the surveillance camera differs significantly from the type of record that schools maintain in students’ personal files. Merely placing the videotape in a location designated as a student’s file does not transform the videotape into a record maintained for students. As counsel for amici argued, [TJhis tape is not in a file maintained for students. It’s not a student record. It’s a surveillance tape. They might have put it in the file (but we’ve heard that they didn’t), but that would not, in and of itself, have covered it under the exemption.

So it never should have been exempt in the first place. Wash. Supreme Court oral argument, Lindeman v. Kelso Sch. Dist. No. 458, No. 77253-3 (Mar. 16, 2006), audio recording by TVW, Washington State’s Public Affairs Network, available at http://www.tvw.org (emphasis added). Even if the District ultimately used the videotape as the basis for disciplining the student who committed the assault, the videotape itself would not thereby be converted into personal information in files maintained for students, since the videotape does not reveal whether discipline was or was not imposed.

The District cannot change the inherent character of the record by simply placing the videotape in the student’s file or by using the videotape as an evidentiary basis for disciplining the student. ¶13 Further undermining the credibility of any later claim that the videotape was a document maintained in the student’s file is the fact that the District permitted the Lindemans to view the videotape on the evening of the incident.

Were the videotape actually a record in the student’s file, the District would have immediately recognized it as such and would not have shared it absent a court order or subpoena or the consent of the student’s parent or guardian.

See RCW 28A.605.030; RCW 28A.600.475; 20 U.S.C. § 1232g(b)(2). ¶14 Even assuming arguendo that the videotape constituted “personal information” within the meaning of the student file exemption, the District failed to satisfy its burden of showing the videotape was “in any files maintained for students.” Thus, we conclude that the videotape was not, and could not have been, legally withheld as a student file document under former RCW 42.17.310(1)(a). C. Attorney Fees, Costs, and Penalties ¶15 Under the PDA, the prevailing party is entitled to attorney fees, costs, and penalties. Former RCW 42-.17.340(4).

Whether a party is prevailing is a “legal question of whether the records should have been disclosed on request.” Spokane Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 103, 117 P.3d 1117 (2005). We conclude that the District failed to establish the student file exemption and must disclose the videotape pursuant to the PDA. Accordingly, the Lindemans are the prevailing party and are entitled to attorney fees, costs, and penalties.

CONCLUSION ¶16 The surveillance videotape of students from a camera on a public school bus is exempt under the student file exemption only if the District establishes the videotape is both “personal information” and “in any files maintained for students.” We reverse the Court of Appeals and remand the matter to the trial court for entry of an order granting the Lindemans’ disclosure request and awarding attorney fees, costs, and discretionary penalties pursuant to former RCW 42.17.340(4). Alexander, C.J., and C. Johnson, Bridge, and J.M. Johnson, JJ., concur.

Reenacted and amended by Laws of 2005, ch. 274, § 402, and recodified as RCW 42.56.230(1) (Laws of 2005, ch. 274, § 103). Amended by Laws of 2005, ch. 483; § 5; Laws of 2005, ch. 274, § 288; and recodified as RCW 42.56.550(3) (Laws of 2005, ch. 274, § 103). Amended by Laws of 2005, ch. 274, § 284, and recodified as RCW 42.56.070(1) (Laws of 2005, ch. 274, § 103). Amended by Laws of 2005, ch. 274, § 283, and recodified as RCW 42.56.030 (Laws of 2005, ch. 274, § 103).