Argued January 15, 2013.
Appeal from King County Superior Court. 10-2-28605-5. Honorable Catherine D. Shaffer.
Patrick J. Preston and Thomas M. Brennan (of McKay Chadwell PLLC ), for petitioner.
Peter S. Holmes, City Attorney, and Gary T. Smith, Assistant ; and Matthew J. Segal and Jessica A. Skelton (of Pacifica Law Group LLP ), for respondent.
Ramsey E. Ramerman on behalf of Washington Association of Sheriffs and Police Chiefs, amicus curiae.
Judith A. Endejan on behalf of Washington Coalition for Open Government, amicus curiae.
Mark K. Roe and Sara J. Di Vittorio on behalf of Washington Association of Prosecuting Attorneys, amicus curiae.
AUTHOR: Chief Justice Barbara A. Madsen. WE CONCUR: Justice Charles W. Johnson, Justice Debra L. Stephens, Justice Steven C. Gonzá lez, Justice Sheryl Gordon McCloud. AUTHOR: Justice James M. Johnson. WE CONCUR: Justice Susan Owens, Justice Mary E. Fairhurst, Justice Charles K. Wiggins.
[179 Wn.2d 381] ¶ 1 At issue is the proper scope of the effective law enforcement exemption of the Public Records Act (PRA), chapter 42.56 RCW. The Seattle Police Department (SPD) used this exemption to justify nondisclosure of documents regarding the investigation of an altercation between petitioner Evan Sargent and an SPD officer. Sargent raises several challenges to the Court of Appeals decision holding that the effective law enforcement exemption applies categorically to an investigation file where the prosecutor has declined to file charges and has referred the [179 Wn.2d 382] case back to the SPD for follow-up investigation and to information contained in an internal investigation file.
¶ 2 We hold that the exemption does not apply categorically to the requested criminal investigation information or to the requested internal investigation information. Further, although we agree with the Court of Appeals that the exemption does not apply categorically to witness identification, we hold that remand on this issue is not warranted. We agree with the Court of Appeals that the SPD properly withheld Sargent's nonconviction information under the Washington State Criminal Records Privacy Act (CRPA), chapter 10.97 RCW, and that the Court of Appeals correctly remanded for reconsideration of penalties. Sargent is entitled to attorney fees to the extent that he prevailed on appeal. We reverse the Court of Appeals in part, affirm in part, and remand to the trial court for reconsideration of the appropriate penalty.
¶ 3 This case stems from a July 28, 2009 confrontation between Sargent and off-duty SPD Officer Waters in a West Seattle alleyway. The parties dispute the facts. Sargent contends that he parked his car in an alleyway to make a commercial stop. While he was inside picking up laundry, Officer Waters drove up the alleyway and became irate when he could not locate the owner of the parked car blocking his way. Sargent states
that Waters proceeded to pound on the hood of his car, punch off his passenger side mirror, and eventually draw his weapon, without identifying himself as an SPD officer. Waters contends he did identify himself as a police officer and that Sargent instigated the confrontation by pinning Waters up against a wall with his car and hitting him with a baseball bat.
¶ 4 Sargent was arrested for assault for swinging his bat at Officer Waters and spent the night in jail. Because Sargent was not released, the SPD referred the case to the [179 Wn.2d 383] King County Prosecuting Attorney's Office (KCPA) as a " rush file." See CrR 3.2.1 (requiring a judicial determination of probable cause within 48 hours after arrest). On August 6, 2009, the KCPA declined to file charges and referred the case back to SPD for follow-up investigation.
¶ 5 Sargent submitted PRA requests for information related to the confrontation, hoping to mount a civil rights challenge. His first request on August 31, 2009 sought records of the incident report and the name and badge number of the SPD officer. Sargent supplemented his initial request on September 1 by adding a request for copies of the 911 tapes and the computer aided dispatch (CAD) log related to the incident. In letters dated September 4 and September 9, 2009, the SPD denied Sargent's PRA requests, citing the RCW 42.56.240 exemption for effective law enforcement. Sargent appealed the denial through the SPD internal process, but the SPD agreed to disclose only the name of the SPD officer.
¶ 6 Meanwhile, by October 23, 2009, the SPD had conducted its final witness interview and in January 2010, referred the matter to the Seattle city attorney for charges. The city attorney declined to prosecute Sargent and the criminal investigation was closed.
¶ 7 On February 5, 2010, Sargent renewed his original PRA request and added a request for written and recorded communications regarding a pending internal SPD disciplinary investigation of Officer Waters. On March 10, 2010, the SPD released its first production of responsive documents. This initial production included the 911 tapes and CAD log from the incident, with all witness names redacted. The SPD withheld their internal investigation file, citing the effective law enforcement exemption. Sargent contacted the SPD about his outstanding requests and the SPD produced a second batch of responsive documents on April 5. This production included written communications and additional materials in the investigation file but redacted names and identification information under the effective [179 Wn.2d 384] law enforcement exemption. Additionally, the SPD withheld Sargent's nonconviction data and continued to withhold any information related to the internal disciplinary investigation of Officer Waters. On April 21, Sargent corresponded with the SPD, asking substantive questions about the documents remaining in the SPD's possession. On April 30, the SPD completed the internal investigation of Officer Waters.
¶ 8 Sargent filed a complaint for relief under the PRA on August 5, 2010 in King County Superior Court. At a show cause hearing, the trial court ordered production of unredacted requested information and assessed a $ 30,270 penalty against the SPD. The trial court reasoned that once the case was first referred to the KCPA the effective law enforcement exemption was no longer categorical. The court also found that the SPD acted in bad faith when it continued to withhold information after the final witness interview had been conducted. The court therefore awarded the maximum penalty of $ 100 per day after this point and the minimum penalty of $ 5 per day before this point when the SPD still believed in good faith that the exemption applied categorically.
¶ 9 The SPD appealed and the Court of Appeals reversed in substantial part. Sargent v. Seattle Police Dep't, 167 Wn.App. 1, 260 P.3d 1006 (2011). The Court of Appeals held that the effective law enforcement exemption did not end when the case was referred to the KCPA for filing or with the final witness interview but continued to apply categorically until the case was referred for a second time to prosecutors and the investigation
was closed. Id. at 12-15. The court further held that the exemption applied categorically to the internal disciplinary investigation of Officer Waters and hence the SPD properly withheld those files as well. Id. at 21-22. Although the nondisclosure of witness identities was [179 Wn.2d 385] not covered by the categorical exemption, the Court of Appeals thought that the SPD may have reasonably relied on case law suggesting otherwise and remanded to give the SPD an opportunity to justify its redaction. Id. at 18-19. The court also held that the SPD properly withheld Sargent's nonconviction criminal history under the CRPA. Id. at 20-21. Finally, the Court of Appeals reasoned that the trial court abused its discretion in awarding a maximum penalty where there was no showing of bad faith or gross negligence. Id. at 22-25. The court remanded for a redetermination of the witness identification issue and reconsideration of the penalty.
1. The PRA and the effective law enforcement exemption
a. Standard of review
¶ 10 Judicial review of agency denials of PRA requests is de novo. RCW 42.56.550(3) (" Judicial review of all agency actions taken or challenged under RCW 42.56.030 through 42.56.520 shall be de novo." ); Newman v. King County, 133 Wn.2d 565, 571, 947 P.2d 712 (1997).
¶ 11 The PRA mandates broad public disclosure. RCW 42.56.030 (" 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." ); Newman, 133 Wn.2d at 570; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 130, 580 P.2d 246 (1978). The PRA requirement of disclosure is broadly construed and its exemptions are narrowly construed to implement this purpose. RCW 42.56.030; Cowles Publ'g Co. v. Spokane Police Dep't, 139 Wn.2d 472, 476, 987 P.2d 620 (1999); Newman, 133 Wn.2d at 571. Disclosure is therefore mandated unless the agency can demonstrate proper application of a statutory exemption to the specific requested information; the agency bears [179 Wn.2d 386] the burden of proof. Newman, 133 Wn.2d at 571 (stating that " the agency claiming the exemption bears the burden of proving that the documents requested are within the scope of the claimed exemption" ); Hearst, 90 Wn.2d at 130 ( " The statutory scheme establishes a positive duty to disclose public records unless they fall within the specific exemptions." ).
b. The PRA effective law enforcement exemption does not apply categorically to block production of the criminal investigation materials Sargent requested
¶ 12 Sargent submitted two PRA requests to the SPD for information related to the criminal investigation concerning his confrontation with Officer Waters. The SPD denied Sargent's requests, reasoning that the PRA's exemption for effective law enforcement categorically prevented disclosure of the information. The effective law enforcement exemption to the PRA provides that the following information is exempt from disclosure:
Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.
¶ 13 Like all exemptions to the PRA, this exemption is to be construed narrowly. This policy of narrow construction is embedded in the PRA statute itself: " This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy [of disclosure] and to assure that the public interest will be fully protected." RCW 42.56.030. The PRA also instructs courts reviewing agency actions to " take into account the policy of this chapter that free and open examination of public records is in the public interest, even though
such examination may cause inconvenience [179 Wn.2d 387] or embarrassment to public officials or others." RCW 42.56.550(3).
¶ 14 Typically, the agency claiming exemption must prove that nondisclosure of the particular requested documents is essential to effective law enforcement. However, this court has held that the effective law enforcement exemption applies categorically in a narrow set of circumstances. In this case, the SPD did not prove why the exemption applied to each document Sargent requested, but instead contended that the exemption applied categorically and automatically to block production of the entire investigative file.
¶ 15 We established the categorical application of the effective law enforcement exemption in Newman. In Newman, a journalist submitted a PRA request for access to an ongoing murder investigation file. 133 Wn.2d at 568-69. The law enforcement agency denied Newman's request, claiming that nondisclosure of the entire file was essential to effective law enforcement. Id. Although the court recognized that agencies typically bear the burden to prove that nondisclosure of particular documents is essential to effective law enforcement, the circumstances of the case justified categorical exclusion of the entire file. Id. at 573-74. Specifically, because the crime was unsolved and enforcement proceedings were still contemplated, the agency should not be required to parse the relevance of individual documents. Id. at 574-75. In reaching this conclusion, the court focused on two factors. Id. at 574; see Cowles, 139 Wn.2d at 477-78. First, the police would have difficulty segregating sensitive and nonsensitive information where the investigation was ongoing. Second, the law enforcement agency, rather than the court, was the proper party to determine whether nondisclosure was essential. For these reasons, this court held that the requested information was categorically exempt from disclosure.
¶ 16 Two years later in Cowles, this court limited the categorical application established in Newman. In Cowles, a [179 Wn.2d 388] reporter requested information related to the arrest of an assistant city attorney for drunk driving and attempted assault. 139 Wn.2d at 474-75. At the time of the PRA request, the police had already referred the case to the prosecutor for filing. Id. The court reasoned that the exemption did not apply categorically because the policies motivating Newman were absent. First, because the suspect was known and the case was already referred to a prosecutor, there was no risk of disclosing sensitive information that might interfere with apprehension of the suspect; the agency could thus assess the relevance of individual documents. Id. at 477-78. Second, the police were not " institutionally better suited" than courts to determine which information was essential to law enforcement. Id. at 478-79. The court established a bright line that " where the suspect has been arrested and the matter referred to ...