Oral Argument September 3, 2014
Appeal from Pierce County Superior Court. Docket No: 12-2-09312-7. Judge signing: Honorable Susan K Serko. Judgment or order under review. Date filed: 02/22/2013.
Jennifer Combs, Loren D. Combs, and Gregory F. Amann (of VSI Law Group PLLC ), for petitioner.
James W. Beck (of Gordon Thomas Honeywell ), for respondent.
Authored by Thomas R Bjorgen. Concurring: Jill M Johanson, Rich Melnick.
[186 Wn.App. 126] Bjorgen,
¶ 1 On discretionary review, the city of Fife (City) challenges the superior court's partial summary judgment order requiring it to provide Fife police officer Russell Hicks with unredacted copies of requested public records. The records concern an investigation into complaints Hicks and another officer made against certain high-ranking Fife Police Department officials. The City contends that the superior court erred in ordering it to disclose certain information revealing the identities of witnesses and accused officers, arguing that the redacted information falls under exemptions in the Public Records Act (PRA), chapter 42.56 RCW, for specific investigative information compiled by law enforcement agencies and personal information in files maintained for public employees. The City further argues that the superior court erred in ruling that the City violated the PRA by redacting Hicks's own identifying information and by not providing the requested materials to Hicks until ordered to do so following a related, unsuccessful declaratory judgment action by the City. Because the City failed to raise a genuine issue of material fact as to whether the claimed exemptions apply, we affirm.
¶ 2 In March 2011 Hicks and another Fife police officer submitted a whistle blower complaint pursuant to chapter 42.41 RCW to Fife City Manager Dave Zabell. The complaint alleged that certain high-ranking officials in the Fife Police Department had engaged in various types of misconduct, including racial discrimination in awarding extra compensation to bilingual officers, retaliation against officers [186 Wn.App. 127] who complained about the alleged discrimination, misappropriation of public funds to provide bilingual pay to an officer who was not actually bilingual, gender discrimination and harassment, an improper romantic relationship in the workplace and related cover-up, and inappropriate relationships with young adult offenders.
¶ 3 The City's attorney retained an outside entity, The Prothman Company, to investigate the allegations. Prothman's report of its investigation concluded that all the allegations were either not sustained, meaning " [t]here [was] insufficient evidence to prove or disprove the allegation," or unfounded, meaning " [t]he allegation was false or not factual." Clerk's Papers (CP) at 372.
¶ 4 The City issued a press release regarding the Prothman report, quoting Zabell's statements that Prothman had conducted a " thorough" investigation in a diligent and professional manner and that Zabell was confident that the investigation had " g[otten] to the truth" of the allegations. CP at 181-82.
¶ 5 Hicks then submitted a public records request to the City, requesting the following records related to his whistle blower complaint and the Prothman investigation:
1. All final reports made as a result of any investigations into the 2011 Whistleblower Complaint.
2. All audio recordings and accompanying transcripts from interviews of the [accused officials and certain named witnesses] made during the investigation of the 2011 Whistleblower Complaint. ...
3. All documents, emails, audio recordings, video, and electronic messages that were relied on in conducting the investigation.
4. All documents provided to any media regarding the 2011
Whistleblower Complaint, its investigation, and findings arrived at in response to that Complaint.
CP at 178. In response, the next day the City informed Hicks in writing that " due to the scope of his request," it [186 Wn.App. 128] would provide the responsive records in installments. CP at 36-37. The City released the first installment to Hicks on May 30, 2012, but redacted from the records provided all names and identifying information of witnesses, the accused officers, and the complaining parties and those parties' attorneys. The City released subsequent installments approximately every three weeks for the next four months.
¶ 6 Six days before releasing the first installment, the City sued Hicks for declaratory and injunctive relief in superior court. The complaint alleged that the " audio recordings and transcripts of witness interviews, as well as pre-final report interviewer prepared/involved documents prepared by Prothman [sic] ... do not constitute public records" or, in the alternative, were exempt from disclosure pursuant to RCW 42.56.290, the PRA exception for attorney work product and communications protected by the attorney-client privilege. The complaint asked the court to enjoin disclosure and to declare that the materials
were not public records or were exempt from disclosure. The complaint further requested that the court, should it rule that the materials were nonexempt public records, determine " the extent to which the names and identifying information of interviewees, witnesses, complainants, and the persons accused can be redacted." CP at 5.
¶ 7 After the City provided the first installment, Hicks filed an answer and counterclaim alleging that the City violated the PRA by failing to provide all responsive documents and by filing suit against Hicks. The City moved for an in-camera review of the materials and a protective order, and Hicks moved to compel production of all records responsive to his request.
¶ 8 The superior court granted Hicks's motion to compel in part, ordering the City to provide within 20 days the materials described in the City's complaint, specifically " all audio and written interview files and investigator-created documents used for production of" the Prothman report. CP [186 Wn.App. 129] at 34-35. The court ruled that the audio recordings qualified as public records and were not protected from disclosure by the work product rule or the attorney-client privilege. The court expressly declined to compel production of other
materials or to rule on the propriety of the City's redactions.
¶ 9 The City provided Hicks with the records identified in the order within the time specified. As with the previous installments, however, the City redacted any information specifically identifying witnesses, accused officers, and the complaining parties, including Hicks and his attorneys. The City also modified the audio recordings so that those interviewed could not be identified by their voices. Upon providing the final installment, the City stated that it considered Hicks's request closed.
¶ 10 The City then moved to voluntarily dismiss its declaratory judgment action and for summary judgment on Hicks's counterclaim. The City maintained that in light of the court's ruling on Hicks's motion to compel, no issues remained before the court concerning the City's complaint for declaratory and injunctive relief, and that the court could voluntarily dismiss the complaint as a matter of right. As to the counterclaim, the City argued that it met the time limits imposed by the PRA, that the redactions were proper, and that it had complied with the PRA as a matter of law.
¶ 11 Hicks moved for partial summary judgment on his counterclaim, asking the
trial court to rule that the City had violated the PRA and to order it to provide unredacted versions of all responsive records. In response, the City submitted a declaration from one of the accused officers, Assistant Chief Mark Mears, in addition to other material. Mears opined, based on his 19 years as a law enforcement official, that nondisclosure of the identities of witnesses in an internal investigation into police misconduct was essential to effective law enforcement because witnesses would feel reluctant to cooperate if they knew that anyone could subsequently learn their identities and whet they had said.
[186 Wn.App. 130] ¶ 12 After a hearing, the superior court granted Hicks's motion for partial summary judgment, ruling that the City violated the PRA by improperly redacting information identifying the witnesses and most of the accused officers that Prothman had interviewed. The court's order permitted the City to redact only the identities of subjects of unsubstantiated allegations of sexual misconduct. The court's oral ruling found a violation of the PRA based on both the length of time the City took to disclose the records identified in the declaratory judgment action and on the City's improper
redactions. The court's remarks at the hearing also suggest that it based its ruling in part on the views that (1) an agency may not redact the requester's own name from the records requested and (2) the City's participation in media coverage of the Prothman investigation and report undermined its claim that the redacted material was exempt from disclosure. The court reserved ruling on penalties.
¶ 13 Before any hearing on penalties had been scheduled, the City appealed directly to our Supreme Court, which transferred the case to our court. Concluding that the superior court's order was not appealable as a matter of right, our court clerk converted the City's notice of appeal to a motion for discretionary review, which motion our commissioner granted.
¶ 14 After setting forth the standard of review, we first consider whether the superior court erred in ruling that the redacted material did not fall under the two PRA exemptions invoked by the City: the investigative records exemption and the exemption for public employees' personal information. Concluding that the superior court did not err, we then turn to the remaining issues.
I. Standard of Review and Governing Law
¶ 15 Under the PRA,
municipalities must make all public records available for public inspection or copying [186 Wn.App. 131] upon request unless a specific exemption from disclosure applies. RCW 42.56.070(1). " [S]trong public policy" favors disclosure, and courts must construe the PRA's exemptions narrowly. Franklin County Sheriff's Office v. Parmelee, 175 Wn.2d 476, 479, 285 P.3d 67 (2012) (citing RCW 42.56.030), cert. denied, 133 S.Ct. 2037 (2013). The agency claiming the exemption bears the burden of proving that a specific exemption applies. Prison Legal News, Inc. v. Dep't of Corr., 154 Wn.2d 628, 636, 115 P.3d 316 (2005).
¶ 16 An agency may also ask a court to enjoin disclosure of requested records. RCW 42.56.540; Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 751-52, 174 P.3d 60 (2007) (plurality opinion). The court may grant the injunction if it finds that an exemption applies and disclosure would clearly not be in the public interest and would substantially and irreparably damage any person or would substantially and irreparably damage vital governmental functions. Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 257-58, 884 P.2d 592 (1994).
¶ 17 We review an agency's denial of the opportunity to inspect or copy public records de novo. RCW 42.56.550(3). We also review a trial court's grant of summary judgment de novo, performing the same inquiry as the trial court. Torgerson v. One ...