Appeal from Thurston Superior Court. Docket No: 12-2-01629-9. Judge signing: Honorable Gary R Tabor. Judgment or order under review. Date filed: 05/10/2013.
Arthur West, pro se.
Carolyn A. Lake and Seth S. Goodstein (of Goodstein Law Group PLLC ), for respondent.
Authored by Bradley A. Maxa. Concurring: Jill M Johanson, Rich Melnick.
[183 Wn.App. 309] ¶ 1 Arthur West appeals the trial court's dismissal of his Public Records Act (PRA), ch. 42.56 RCW, claim against the Port of Olympia. West's claim is based on the Port's redactions of a Port employee's name, job title, job duties, and other identifying details from an investigative report relating to unsubstantiated allegations of governmental misconduct made against tat employee. The Port made the redactions under the exemption in former RCW 42.56.230(2) for personal information that would violate an employee's right to privacy.
¶ 2 We assume without deciding that the employee's identity constituted personal information and that the employee had a privacy right in his or her identity in connection with the allegations. However, we hold that the Port's redactions violated the PRA because disclosure of the identifying information would not be highly offensive to a reasonable person and therefore would not violate the employee's right to privacy. Accordingly, we reverse the trial court's dismissal of West's PRA claim. In addition, we award [183 Wn.App. 310] attorney fees to West on appeal and remand to the trial court to award West his attorney fees and costs below and to determine whether a statutory penalty is proper.
¶ 3 In 2012, West submitted a PRA request to the Port seeking, among other items, records relating to the Port's investigation of a whistleblower complaint made by a former Port employee. The complaint alleged that a Port employee " undertook improper governmental action." Clerk's Papers (CP) at 17. The Port's initial inquiry into the complaint resulted in other employees raising additional allegations about that employee. The Port's attorney conducted an investigation and prepared a report. Specifically, the investigation report addressed whether the employee accused in the complaint had derived personal gain from Port activities. The investigation report also addressed whether the employee exceeded his or her scope of authority and failed to follow established accounting procedures, disposed of environmentally sensitive materials improperly, and violated Port policies regarding work on holidays. The Port's attorney apparently concluded that the complaints were unsubstantiated.
¶ 4 The Port responded to West's PRA request by producing the requested records,
including the investigative report. But the Port redacted all information that would identify the accused employee - the employee's name, gender pronouns related to the employee, the employee's job title, details regarding the employee's job duties, and details regarding the alleged improper governmental action. The Port claimed that information regarding the Port employee's identity was exempt from disclosure under former RCW 42.56.230(2) because such disclosure would constitute an invasion of privacy under RCW 42.56.050.
¶ 5 West filed a complaint in superior court under the PRA, claiming that the Port had made unlawfully excessive [183 Wn.App. 311] redactions to the investigative report. The trial court dismissed West's PRA claim, ruling that the Port's redactions were proper based on the privacy exemption in former RCW 42.56.230(2) and under case law holding that ...