Amren v. City of Kalama

• Decision Date: 09 January 1997
• Docket Number: No. 63929-9,63929-9
• Citation: 929 P.2d 389,131 Wn.2d 25
• Court: Washington Supreme Court
• Parties: Nora AMREN, Appellant, v. The CITY OF KALAMA, Respondent.

Page 25

131 Wn.2d 25

929 P.2d 389

Nora AMREN, Appellant, v. The CITY OF KALAMA, Respondent.

No. 63929-9.

Supreme Court of Washington,

En Banc.

Argued Oct. 23, 1996.

Decided Jan. 9, 1997.

Scott M. Missall, Seattle, Christine Gregoire, Attorney General, James K. Pharris, Asst., Olympia, for amicus curiae.

Eisenhower & Carlson, Guy J. Sternal, Amy C. Lewis, Tacoma, for appellant.

Alan L. Engstrom, Longview, for respondent.

MADSEN, Justice.

This case involves the interplay between a provision of the public disclosure act, RCW 42.17.295, and a provision of the state civil service law, RCW 41.06.450(1)(a), and whether these provisions provide an exemption from disclosure a State Patrol report investigating citizen complaints regarding the City of Kalama's police chief. This court concludes that RCW 42.17.295 and RCW 41.06.450(1)(a) do not create an exemption in this case and reverses the trial court order denying disclosure.

STATEMENT OF THE CASE

Mike Pennington was hired as the Kalama police chief by Mayor Glen Munsey in March of 1994. According to the affidavit submitted by the Mayor, complaints regarding the police chief began at a city council meeting in the spring of 1995. At the meeting, a citizen complained that when he went to the police station to collect property which had been seized during his son's arrest the police chief treated him in a threatening, intimidating, and otherwise unprofessional manner. The police chief denied the citizen's version of the encounter and an unidentified third party who was present substantiated the police chief's statements.

After the city council meeting, the Mayor and other council members continued to receive complaints from citizens regarding the Chief's enforcement of the law and in particular, about the Chief's alleged aggressiveness. In the spring of 1995, citizens asked the city council to have an outside investigator look into alleged mistreatment by Kalama police officers that occurred during a drug arrest and to investigate other prior incidents involving the Chief. Initially, it was the Mayor who conducted the investigation and he determined that the allegations were without merit and that an outside investigation was not warranted.

It was not until citizens complained that the Mayor was "too close to the Chief" that the Mayor requested the State Patrol to investigate the citizen complaints. Clerk's Papers (CP) at 37. The State Patrol made it clear to the Mayor that they were not conducting a criminal investigation. In October of 1995, the State Patrol finished its investigation and delivered the report to the City. According to the Patrol Captain's letter to the Mayor, the report contained no "conclusions or recommendations." CP at 44. The report consists of three volumes of witness statements and backup documentation. The report dealt with five categories of complaints including failure to exhibit courtesy to the public, failure to follow proper complaint receiving procedures, use of excessive force, lack of telephone courtesy, and prejudicial conduct.

The Mayor, Councilman Doug Reel and Councilwoman Mary Gillespie read the report. After the Mayor reviewed the report, he concluded that the allegations were unfounded and false. Although the Mayor exonerated the Chief of any wrongdoing, he set several "goals" for 1996 for the Chief and his department. CP at 40. These "goals" included requiring the Chief and his department to attend classes in cultural sensitivity and community oriented policing and asked the Chief to refer to Kalama as "our town" instead of "my town" and to "be very careful in the use of any ethnic comments." CP at 45.

In February of 1996, Nora Amren, a citizen of Kalama, requested a copy of the State Patrol's report on the Chief. The City of Kalama denied the request. Following the City's denial, Amren filed the present action seeking a writ of mandamus directing the City to produce the report under the public disclosure act, RCW 42.17.250. Pursuant to RCW 42.17.340, Amren also sought attorney's fees and $25 for each day disclosure was not provided.

The City of Kalama claimed that the report was exempt from disclosure under RCW 42.17.295 and RCW 41.06.450(1)(a). RCW 42.17.295 of the public disclosure act provides that an agency may destroy information relating to employee misconduct pursuant to RCW 41.06.450. RCW 41.06.450(1)(a) provides:

(1) By January 1, 1983, the Washington personnel resources board shall adopt rules applicable to each agency to ensure that information relating to employee misconduct or alleged misconduct is destroyed or maintained as follows:

(a) All such information determined to be false and all such information in situations where the employee has been fully exonerated of wrongdoing, shall be promptly destroyed;

The trial court found as a matter of law that RCW 42.17.295 and RCW 41.06.450(1)(a) provided an exemption for the report.

Although a request was made by counsel for Amren, ¹ the trial court declined to conduct an in camera review of the report. Based solely on the Mayor's affidavit which concluded that the allegations were false and unfounded, the trial court held that the report was exempt from public disclosure pursuant to RCW 41.06.450(1)(a). Consequently, because the trial judge did not conduct an in camera review, the State Patrol report did not become part of the record on review. Amren appealed the trial court's order denying disclosure and this court accepted review pursuant to RAP 4.2(a)(4).

DISCUSSION

Initiative 276 was passed by Washington State voters in 1972. The act which is known as the public disclosure act the Act) became effective January 1, 1993. See Laws of 1973, ch.1; RCW 42.17. The Act was designed to provide open access to governmental activities. RCW 42.17.010. The Act reflects the belief that the sound governance of a free society demands that the public have full access to information concerning the workings of the government. The purpose of the Act is to ensure the sovereignty of the people and the accountability of the governmental agencies that serve them. RCW 42.17.251.

This court has found that the Act is a "strongly worded mandate for broad disclosure of public records." Progressive Animal Welfare Society v. University of Washington, 125 Wash.2d 243, 251, 884 P.2d 592 (1994) (PAWS) (quoting Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978)); Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 33, 769 P.2d 283 (1989). Thus, it is to be liberally construed to promote full access to public records, and its exemptions are to be narrowly construed. PAWS, 125 Wash.2d at 251, 884 P.2d 592; RCW 42.17.251.

The Act requires all state and local agencies to disclose any public record upon request, unless the record falls into the specific exemptions listed in RCW 42.17.260(6), RCW 42.17.310, RCW 42.17.315, or any other statute which exempts or prohibits disclosure of specific records or information. RCW 42.17.260(1). There is no dispute in this case that the State Patrol report is a "public record" ² as defined by the Act and that the City is an "agency" ³ within the meaning of the Act. The City of Kalama must, therefore, make the documents available to Amren unless a statutory exemption applies. Additionally, if the requested material contains both exempt and non-exempt material, the exempt material may be redacted but the remaining material must be disclosed. RCW 42.17.310(2). ⁴ The City of Kalama has the burden of proving that the information sought falls within one of the Act's exemptions. See Brouillet v. Cowles Publishing Co., 114 Wash.2d 788, 793, 791 P.2d 526 (1990); Spokane Police Guild, 112 Wash.2d at 35, 769 P.2d 283; RCW 42.17.340(1).

Because the trial court decided this case on the basis of affidavits, this court will review its decision de novo. See PAWS, 125 Wash.2d at 252, 884 P.2d 592; Brouillet, 114 Wash.2d at 794, 791 P.2d 526; RCW 42.17.340(3). Courts are to take into account the Act's policy "that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others." PAWS, 125 Wash.2d at 251, 884 P.2d 592 (quoting RCW 42.17.340(3)).

The City of Kalama relies on the "other statute" exemption in RCW 42.17.260(1) to deny the request for disclosure of the State Patrol's report in its entirety and bases its denial on RCW 42.17.295 and RCW 41.06.450(1)(a). The City of Kalama asserts that RCW 41.06.450 implicitly creates an exemption from disclosure in cases like the one at bar where an employee has been exonerated of wrongdoing. The City contends that by passing RCW 42.17.295 and RCW 41.06.450(1)(a) the Legislature determined that maintaining false information relating to alleged employee misconduct is unfair to employees and serves no useful function and, thus, the Legislature authorized the nondisclosure and destruction of the information. The City also asserts that the employing agency has unreviewable authority to determine the truth or falsity of the allegations of employee wrongdoing.

The only question we have to answer in this case is whether the statutes relied on by the City and the trial court create an exemption for the City. ⁵ As Amren and the Attorney General in its brief of amicus note, these two statutes, unlike most of the provisions in RCW 42.17, apply only to state government and have no applicability to a local government such as the City of Kalama. RCW 41.06 is the state civil service law, and as such governs only agencies of state government. The definition of an agency under the state civil service statute is defined as "an office, department, board, commission, or other separate unit or division, however designated, of the state government." RCW 41.06.020(1) (emphasis added). This is contrasted by the broader "state" and "local" agencies that are subject to the public disclosure act. RCW 42.17.020...