Brouillet v. Cowles Pub. Co.
| Decision Date | 31 May 1990 |
| Docket Number | No. 56374-8,56374-8 |
| Citation | 791 P.2d 526,114 Wn.2d 788 |
| Parties | , 60 Ed. Law Rep. 638, 17 Media L. Rep. 1982 Frank B. BROUILLET, State Superintendent of Public Instruction; and Washington Education Association, Appellants, v. COWLES PUBLISHING COMPANY, Respondent. En Banc |
| Court | Washington Supreme Court |
Kane, Vandeberg, Hartinger & Walker, William A. Coats, Clifford D. Foster, Jr., Tacoma, for appellant Brouillet.
Faith Hanna, Seattle, for appellant Washington Educ. Ass'n.
Witherspoon, Kelley, Davenport & Toole, P.S., Duane M. Swinton, Spokane, for respondent.
The Cowles Publishing Company requested records specifying the reasons for teacher certificate revocations during the last 10 years. It wanted to use the records to prepare investigative articles on teacher sexual misconduct with students. The State Superintendent of Public Instruction (SPI) and the Washington Education Association (WEA) sought a declaratory judgment upholding SPI's refusal to fully comply with Cowles' request. 1 The trial judge ordered the release of the records sought with certain deletions designed to protect the privacy of the student victims of sexual misconduct. We agree with the trial court's conclusion that the Washington public disclosure act requires release of these records. See RCW 42.17.
Prior to filing suit, SPI gave Cowles the names of the 89 teachers whose certificates were revoked in the last 10 years and their last place of employment. 2 Cowles has not sought the release of the names of victims.
The documents detailing the reasons for revocation of teacher certificates were at issue in the proceedings below. 3 Some of these documents contain statements about the sexual involvement of teachers with students.
The parties submitted affidavits of school officials, students, teachers, attorneys involved in teacher decertification, and various experts. These affidavits addressed the question of whether release of these records would discourage student witnesses from making complaints about teacher sexual misconduct which form the basis for some certificate revocations. The school system 4 moved to strike affidavits of out-of-state administrators, or, in the alternative, to permit oral testimony. The trial court struck opinion testimony from the relevant affidavits. But it admitted the factual portions into evidence and did not allow oral testimony.
Cowles sought to prove at trial that disclosure of these records would not impede investigation of teachers. Cowles submitted affidavits from students who stated that disclosure would encourage victims of abuse to come forward because they would feel less isolated. The students also said that release of details of sexual contact was less harmful than having false rumors circulating. Cowles also submitted an affidavit from a journalist indicating that all 12 students he interviewed agreed to release details of the incidents they were involved in and 5 agreed to the release of their names.
One father's affidavit stated that disclosure would enable the public to encourage the school system to diligently investigate complaints. He believed that the school system would have dropped the investigation into sexual abuse of his daughter but for his persistence.
The states of Florida, Nebraska and Georgia investigate teachers while allowing disclosure of records. Finding of fact 10. The record does not permit firm conclusions about the effect this openness has on disciplinary actions due to sexual abuse.
The school system submitted affidavits of school officials and lawyers who had experience in certificate revocation. These affiants opined that disclosure would discourage witnesses from coming forward with complaints of sexual abuse. Several affiants stated that in their experience students were always concerned about confidentiality and that assurances of confidentiality were important in encouraging witnesses to make detailed accusations. One affiant testified that victims over 13 are especially concerned about the possibility of newspaper coverage. The school system's affidavits pointed out that details of the incidents might be used to identify the complaining witnesses.
Eighty-six of the eighty-nine teachers who lost their certificates gave them up voluntarily rather than invoking their right to either a closed or open hearing. Assurances of confidentiality play a key role in negotiating relinquishment of the certificate.
Judge Casey entered findings of fact and conclusions of law and held that the Washington public disclosure act required the school system to release the requested documents. The court, however, ordered the school system to delete information which might facilitate identification of victims of teachers' sexual misconduct. It ordered deletion of victims' names, addresses, phone numbers, parents' names, physical characteristics, class scheduling information, and special circumstances ("such as marrying the teacher").
This case involves important issues of public policy. The public disclosure act adopted by the people through the initiative process and amended by the Legislature controls the resolution of these issues. The policy of the act favors disclosure. Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978) (citing RCW 42.17). The act states:
Courts shall 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 or embarrassment to public officials or others....
RCW 42.17.340(2). The public disclosure act mandates disclosure of all public records not falling under specific exemptions delineated in the act. In keeping with the act's policy, we construe exemptions from mandatory disclosure narrowly. Hearst, 90 Wash.2d at 128, 580 P.2d 246. Before determining whether any exemption applies here, we must determine the scope of review.
Because the trial court decided this case on the basis of affidavits, we review its decision de novo. See In re Rosier, 105 Wash.2d 606, 616, 717 P.2d 1353 (1986); RCW 42.17.340(2). The government has the burden of proving that the information sought falls within one of the act's exemptions. RCW 42.17.340(1); Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 35, 769 P.2d 283 (1989).
We reject SPI's argument that we should review the trial court's findings of fact and conclusions of law as we would a motion for summary judgment. Three decisions of the Court of Appeals support the school system's argument that a decision based on affidavits may be treated like a summary judgment motion on appeal. See In re Bellanich, 43 Wash.App. 345, 350, 717 P.2d 307 (1986); Robeson v. Helland, 32 Wash.App. 487, 489, 648 P.2d 461 (1982); Fisher v. Clem, 25 Wash.App. 303, 307, 607 P.2d 326 (1980).
These decisions conflict with precedent treating final decisions based on affidavits as decisions on the merits. See, e.g., Police Guild, 112 Wash.2d at 34-36, 769 P.2d 283; In re Rosier, 105 Wash.2d at 616, 717 P.2d 1353; Smith v. Skagit Cy., 75 Wash.2d 715, 718-19, 453 P.2d 832 (1969). We reject all decisions inconsistent with these holdings. This case will be reviewed de novo, but the facts will not be construed in the light most favorable to the school system inasmuch as no party moved for summary judgment below.
The SPI argues that WAC 180-75-019(3), a state board of education regulation guaranteeing the confidentiality of the records in this case, merits deference. Our unanimous decision in Hearst precludes granting any deference to this regulation. In Hearst, we explained that the agency is without authority to determine the scope of exemptions under the act. Hearst, 90 Wash.2d at 129, 580 P.2d 246. We also noted that the statute places the burden of proof on the agency and requires de novo review of its determinations. "Thus, even when the court's interpretation is contrary to that of the agency charged with carrying out the law, it is ultimately for the court to declare the law and the effect of the statute." Hearst, at 130, 580 P.2d 246.
The burden of proof is mandated statutorily. We cannot defer to the state board of education's rule and must, therefore, decide for ourselves whether the act exempts these records from disclosure. Hearst noted, "leaving interpretation of the act to those at whom it was aimed would be the most direct course to its devitalization." Hearst, at 131, 580 P.2d 246. The agency must shoulder the burden of proving that one of the act's narrow exemptions shields the records it wishes to keep confidential.
The school system claims that various exemptions to the public disclosure act and the federal education privacy law protect these records. See RCW 42.17.310(1)(d) (); RCW 42.17.310(1)(i) (intra-agency memorandum exemption); RCW 42.17.260 (); 20 U.S.C. § 1232g (1974). We examine each of these claims in turn.
The trial court found that the investigative records exemptions found in RCW 42.17.310(1)(d) do not apply to the records at issue in this case. That provision exempts:
specific investigative records compiled by ... 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.
RCW 42.17.310(1)(d). The records here are specific investigative records compiled by a state agency with the responsibility to discipline teachers. The issue is whether nondisclosure is essential to effective law enforcement or the protection of the right to privacy. The school system has argued that nondisclosure is essential to revocation of teacher certificates. It has not argued that nondisclosure is essential to criminal law enforcement.
The trial court concluded that the revocation of teacher certificates simply is not...
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