Bellevue John Does v. Bellevue School Dist.
| Decision Date | 03 October 2005 |
| Docket Number | No. 52304-0.,No. 54380-6.,No. 54300-8-I.,54300-8-I.,52304-0.,54380-6. |
| Citation | 120 P.3d 616,129 Wn. App. 832 |
| Parties | BELLEVUE JOHN DOES 1-11, Federal Way John Does 1-5 and Jane Does 1-2 and Seattle John Does 1-13 and John Doe, Appellants, v. BELLEVUE SCHOOL DISTRICT # 405, a municipal corporation and a subdivision of the State of Washington, Federal Way School District # 210, a municipal corporation and a subdivision of the State of Washington, and Seattle School District # 1, a municipal corporation and subdivision of the State of Washington, and Seattle Times Company, Respondents. |
| Court | Washington Supreme Court |
Leslie Jean Olson, Olson & Olson PLLC, Seattle, WA, for Appellants Bellevue School Dist. # 405 & Seattle John Doe # 6.
Tyler K. Firkins, Vansiclen Stocks & Firkins, Auburn, WA, for Appellants John & Jane Does.
Joyce L. Thomas, Frank, Freed, Subit & Thomas LLP, Seattle, WA, for Appellant Seattle John Doe # 13.
Steve Paul Moen, Shafer, Moen & Bryan PS, Seattle, WA, for Appellant Seattle John Doe # 9.
Michael W. Hoge, Perkins Coie, Seattle, WA, for Respondent Bellevue School Dist. # 405.
Jeffrey Ganson, Dionne & Rorick, Seattle, WA, for Respondent Federal Way School Dist. # 210.
John Michael Cerqui, Seattle Public Schools/General Counsel Office, for Respondent Seattle School Dist. # 1.
Michael John Killeen, Michele Lynn Earl-Hubbard, David Wright Tremaine LLP, Seattle, WA, Alison Page Howard, Redmond, WA, for Respondent/Cross App. Seattle Times Company.
Jessica Goldman, Summit Law Group, Seattle, WA, for Amicus Curiaes Allied Daily Newspaper, Belo Corp., McClatchy Co., Washington Newspapers Publishers.
Harriett Kay Strasberg, Attorney at Law, Olympia, WA, for Amicus Curiae Washington Education Assn.
¶ 1 School districts must disclose the names of teachers who have been accused of misconduct of a sexual nature, even when the districts have concluded after investigation that the allegations are unsubstantiated or too minor to justify discipline. The public is legitimately concerned with knowing the names of the teachers in order to protect students and monitor the performance of the districts. The privacy exemption in the Public Records Act permits withholding the teacher's identity only if the accusation of misconduct is patently false.
¶ 2 In November and December of 2002, the Seattle Times asked the Seattle, Bellevue, and Federal Way School Districts for records identifying teachers accused of, investigated, or disciplined for sexual misconduct within the previous 10 years. The Times wanted to know the substance of each allegation as well as the outcome of any investigation.
¶ 3 Upon receiving a request for records, an agency has the right under the Public Records Act (RCW 42.17.250-.348) to notify individuals affected by the request. The affected individuals may then seek to enjoin the release of records based on the statutory exemptions. RCW 42.17.320. The school districts notified 55 current and former teachers whose records they had gathered in response to the request by the Seattle Times. The present lawsuit was filed against the districts alleging that 37 of these teachers objected to the release of their records. The Times was granted the right to intervene. The districts released to the Times the unedited records of teachers who did not join the lawsuit and those who were dropped from the case in its early stages. The remaining plaintiffs maintained that the release of records identifying them with accusations of sexual misconduct would be an invasion of privacy.
¶ 4 The Public Records Act states as 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." RCW 42.17.340(3). "Agencies shall not distinguish among persons requesting records" and shall not require requesters to explain why they want to see the records. RCW 42.17.270. Thus, the request by the Seattle Times is to be treated no differently than if it came from a parent, from another teacher or school district, or anyone else.
¶ 5 The Act commands agencies of the State of Washington to disclose public records upon request unless a specific exemption allows withholding of the requested records. The party seeking to avoid disclosure has the burden of establishing that the information requested comes within a specific exemption. Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 35, 769 P.2d 283 (1989). The exemption asserted by the teachers is for "Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy." RCW 42.17.310(b).
¶ 6 The right to privacy is invaded or violated under the Act "only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public." RCW 42.17.255. The Times primarily argues that the requested information is a matter of legitimate public concern under Brouillet v. Cowles Publg., 114 Wash.2d 788, 791 P.2d 526 (1990). If so, the information must be disclosed even if disclosure is highly offensive to the teachers accused.
¶ 7 In Brouillet, a publisher asked the Superintendent of Public Instruction for records of teachers whose teaching certificates had been revoked in the last 10 years. The Superintendent provided the names, but withheld documents detailing the reasons for revocation. Some of these documents contained statements about the sexual involvement of teachers with students. The trial court ordered the Superintendent to disclose the documents. The only deletions ordered were those necessary to prevent identification of the students. The Supreme Court affirmed, holding that release of the records was not an invasion of privacy:
Sexual abuse of students is a proper matter of public concern because the public must decide what can be done about it. The public requires information about the extent of known sexual misconduct in the schools, its nature, and the way the school system responds in order to address the problem. Because the information sought is of legitimate public interest, we conclude that no privacy right has been violated.
Brouillet, 114 Wash.2d at 798, 791 P.2d 526.
¶ 8 The teachers involved in this case recognize that under Brouillet, the public is entitled to know how school district administrators respond to reports of misconduct. Without objection, the districts released to the Times early in the litigation numerous records documenting the nature of the allegation in each case, the grade level, the type of investigation conducted, and any disciplinary action taken. But the names of the teachers were changed to "John Doe" pseudonyms, and other identifying information was redacted. The Times continued to pursue, and the John Does to resist, disclosure of their real names.
¶ 9 The trial court concluded that teacher identities were a matter of legitimate public concern "when the investigation of the allegations is inadequate, the allegations are deemed substantiated, or the employee is disciplined with what amounts to more than a letter of direction."1 Using this test, the court ultimately determined that 15 of the original plaintiffs ("prevailing John Does") were entitled to the protection of the privacy exemption. On April 25, 2003, the court ordered the districts to release the names and identifying information concerning the other 22 teachers. Three of these teachers ("appellant John Does") appeal the order of disclosure. The Times cross-appeals, seeking release of identifying information for the 15 prevailing John Does. Because the trial court's rulings on matters essential to our decision were made on the basis of the documentary record rather than live testimony, our review is de novo. See Brouillet, 114 Wash.2d at 793, 791 P.2d 526; Spokane Police Guild, 112 Wash.2d at 35-36, 769 P.2d 283.
¶ 10 Two cases were key to the trial court's decision to withhold the names of the 15 prevailing John Does: Dawson v. Daly, 120 Wash.2d 782, 796, 845 P.2d 995 (1993) (overruled in part by Progressive Animal Welfare Soc. v. University of Washington, 125 Wash.2d 243, 884 P.2d 592 (1994)), and City of Tacoma v. Tacoma News, Inc., 65 Wash.App. 140, 827 P.2d 1094, rev. denied, 119 Wash.2d 1020, 838 P.2d 692 (1992).
¶ 11 Relying on Dawson v. Daly, the trial court concluded that the identity of an accused teacher is not a matter of legitimate public concern "when an adequate investigation uncovers no significant misconduct and the employee is issued what amounts to a letter of direction with no restrictions or punishment."2 A counseling letter, or "letter of direction", is a practice a district may use to respond when it views a teacher's conduct as inappropriate but not serious enough to warrant a reprimand or other discipline.
¶ 12 The names of eight prevailing John Does were withheld on this basis. Bellevue John Doe 1 was accused of inappropriately touching a female student — touching the student's knee, giving her a neck rub, and hugging her. The record consists of two letters to the teacher. The first letter places the teacher on administrative leave pending an investigation. The second letter says the school will not impose any discipline for the conduct, and authorizes the teacher to return to work. It says, "you did not deny the contact but expressed surprise that the student interpreted your intentions as being inappropriate and that the school would have concern for the matter." The district instructed the teacher in the future not to "rub students' necks, touch their knees or other areas that may reasonably be considered sensitive, or touch them in ways that may reasonably be interpreted as inappropriate."
¶ 13 Bellevue John Doe 2 was accused by two female...
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