Appeal from Superior Court of Pierce County. Docket No: 95-2-06240-2. Date filed: 09/22/95. Judge signing: Hon. Frederick B. Hayes.
The Publication Status of this Document has been Changed by the Court from Unpublished to Published April 4, 1997. As Amended April 4, 1997. Petition for Review Granted September 3, 1997,
Authored by Carroll C. Bridgewater. Concurring: J. Dean Morgan, David H. Armstrong.
The opinion of the court was delivered by: Bridgewater
BRIDGEWATER, A.C.J.--We are asked to decide whether the requests to view criminal case files and a deputy prosecutor's personnel file under the public disclosure act, RCW 42.17, made to the county prosecutor's office should have been granted. We hold that a prosecuting attorney's office is an "agency" that must comply with the act; that the files requested contain public records; that the "work product" exception exempts only those items listed under CrR 4.7(f)(1); that the fact that the records were available elsewhere does not relieve the prosecutor from compliance; and, that disclosure of specific instances of misconduct in a personnel file is a matter of legitimate public concern. Because the requests should have been granted, Limstrom is entitled to attorney's fees, costs, and monetary sanctions. We reverse.
Owen S. Limstrom made three public disclosure requests of the Pierce County Prosecutor's Office; his requests were denied, as were his subsequent motions to compel disclosure.
Limstrom's first request was to inspect "any and all files maintained in or by your office in which Deputy Eugene Allen, of the Pierce County Sheriff's Department, was involved in [sic] where the date of the alleged violation was between February 1994 and May 1994." Included with the request was a list of some 54 files. This request was denied by the prosecutor's office, which claimed that the files were exempt from public disclosure because they were "work product" and that disclosure would violate the Criminal Records Privacy Act. Limstrom's subsequent motion to compel disclosure was heard and denied.
Limstrom's second request was to inspect "any and all documents in the personnel file of Deputy Prosecuting Attorney Sunni Young Ko, WSBA Number 20425, which concern any specific instances of misconduct." His third request was to inspect the prosecutor's case file in one particular case, State v. Davis. The record contains no response from the prosecutor's office to these requests. Limstrom claimed no response was made and filed suit and a motion to compel disclosure on both requests, which were denied. At appellate oral argument the prosecutor claimed to have no knowledge of the original requests being received, despite Limstrom having attached mailing return receipts for the requests to his complaint. The trial court did not make a finding as to whether or when Limstrom made a request in these two instances.
Judicial review of agency denials of public disclosure requests are de novo. RCW 42.17.340(3). "The appellate court stands in the same position as the trial court where the record consists only of affidavits, memoranda of law, and other documentary evidence," and thus, the reviewing court is not bound by the trial court's findings. Progressive Animal Welfare Soc. v. University of Wash., 125 Wash. 2d 243, 252-53, 884 P.2d 592 (1994). The public disclosure act, RCW 42.17, is to be construed liberally to "promote complete disclosure," and exceptions to the disclosure requirement are construed narrowly. Dawson v. Daly, 120 Wash. 2d 782, 788-89, 845 P.2d 995 (1993). An agency's duty of disclosure is set forth in RCW 42.17.260(1), which provides that
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 of subsection (6) of this section, RCW 42.17.310, 42.17.315, or other statute which exempts or prohibits disclosure of specific information or records.
A county prosecutor's office is an agency covered by the act because it is a county agency. Dawson, 120 Wash. 2d at 788; RCW 42.17.020(1). *fn1 "Public records" are defined in RCW 42.17.020(36) as: "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." The prosecutor's files requested by Limstrom are public records because they are writings relating to the performance of prosecutorial functions, and they are used by the prosecutor's office in carrying out those functions. See Dawson, 120 Wash. 2d at 789. The evaluations of a deputy prosecutor's performance are also public records because they are prepared by the prosecutor's office and they contain information about the conduct of the prosecutor's office and performance of prosecutorial duties. Id.
Disclosure of documents covered by the act are required unless they fall within a specific statutory exemption. Id. The agency claiming the exemption has the burden of proving that the documents requested fall within the scope of the claimed exemption. Id.; RCW 42.17.340(1).
The prosecutor's office claims that it properly denied Limstrom's request for its 54 case files and the case file of State v. Davis because the documents within the files were either protected by the work product exception to the disclosure requirement, or were available through other agencies (such as the clerk's office). RCW 42.17.310(1)(j) exempts "records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts." This exemption incorporates the work product doctrine as a "rule of pretrial discovery." Dawson, 120 Wash. 2d at 790. "When documents are both relevant to a controversy, defined as completed, existing, or reasonably anticipated litigation, and protected under the work product rule, the exemption in RCW 42.17.310(1)(j) will apply." Id. at 791. "Work product" is a document containing the mental impressions, Conclusions, opinions, or legal theories of opposing counsel. CrR 4.7(f)(1); CR 26(b)(4). The prosecutor contends that Dawson stands for the proposition that once any document is incorporated into a prosecutor's case file it becomes work product and the exemption applies. But the holding in Dawson is that two conditions must apply: (1) the document must be relevant to a controversy, and (2) it must be protected under the work product rule. CrR 4.7(f)(1) *fn2 clearly sets forth what is protected in the criminal arena as "work product." Thus, not everything that comes into the prosecutor's criminal file becomes "work product."
The record does not contain a complete description of the type of documents contained in the prosecuting attorney's files, but Limstrom stated that he expected to find "narrative police reports; field sobriety test reports; alcohol and drug arrest reports; offer sheets; criminal complaints; constitutional rights warnings; implied consent warnings; BAC tickets; citations; and the notes of deputy prosecutors." The prosecutor's office denied Limstrom's request in total and did not identify any specific documents protected as work product. At trial, Limstrom stated that he had received through other sources all of the documents he wanted except the motions of other ...