138
Opinion of the Court
granted the motion and consolidated the appeal in the tort case with the appeal in the PDA action.
On review, the Washington Court of Appeals in large part affirmed the decisions below. In interpreting § 409, the court distinguished between an agency that collects or compiles information for purposes unrelated to § 152 and one that collects and compiles information pursuant to § 152. In the court's view, documents held by the first agency would not be protected by § 409, even if they subsequently were used for § 152 purposes, whereas documents held by the second agency would be protected, so long as their collection or compilation was the result of § 152 efforts. Applying these principles, the court concluded that only one of the documents at issue in the PDA case—the draft memorandum by the county's public works director, see n. 3, supra—was protected by § 409 because it had been prepared for § 152 purposes. The rest were not protected because respondents "carefully requested reports in the hands of the sheriff or other law enforcement agencies, not reports or data 'collected or compiled' by the Public Works Department." 96 Wash. App. 862, 873, 982 P. 2d 123, 129 (1999). The appellate court also expressed doubt about the constitutionality of § 409 as applied in state courts, but decided not to resolve the question because it was not raised. Id., at 875, n. 26, 982 P. 2d, at 130, n. 26. Petitioner appealed once again.
The Washington Supreme Court's decision followed a three-step analysis. The court first determined that disclosure of the information respondents sought under both the PDA and state discovery rules would be appropriate only if the materials requested by respondents were not protected by § 409.
Second, examining the scope of § 409, the Washington Supreme Court rejected, as "unsound in principle and unworkable in practice," 144 Wash. 2d 696, 727, 31 P. 3d 628, 646 (2001), the appellate court's view that § 409 drew a distinction between documents "as held by" the Public Works De-
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