Brown v. Seattle Public Schools, 28956-0-I

• Decision Date: 08 November 1993
• Docket Number: No. 28956-0-I,28956-0-I
• Citation: 860 P.2d 1059,71 Wn.App. 613
• Court: Washington Court of Appeals
• Parties: , 86 Ed. Law Rep. 475, 8 IER Cases 1734 Lillie M. BROWN, Appellant, v. SEATTLE PUBLIC SCHOOLS; Nantambu C. Bomani, President, Rainier View PTA 516, Respondents. Division 1

Page 613

71 Wn.App. 613

860 P.2d 1059, 86 Ed. Law Rep. 475, 8

IER Cases 1734

Lillie M. BROWN, Appellant, v. SEATTLE PUBLIC SCHOOLS; Nantambu C. Bomani, President, Rainier View PTA 516, Respondents.

No. 28956-0-I.

Court of Appeals of Washington,

Division 1.

Nov. 8, 1993.

Lembhard G. Howell, Seattle, for appellant.

Nantambu Bomani, pro se; Lawrence B. Ransom and Karr Tuttle Campbell, Seattle, for respondents.

Duane Michael Swinton, Spokane, for amicus curiae.

GROSSE, Judge.

Lillie M. Brown, principal of Rainier View Elementary School, and former principal of Genesee Hill Elementary School, appeals the decision of the trial court compelling disclosure of portions of her personnel records. Disclosure of the requested records was sought from the Seattle School District (School District) by the president of the Rainier View School Parent Teacher Association, Nantambu Bomani. Brown sought an injunction to prevent the School District from disclosing the documents to Bomani.

The School District identified a large number of documents as being responsive to Bomani's request. Brown initially opposed the disclosure of many of them; however, by mutual agreement this number was narrowed to the 23 documents which remain in issue. The documents relate to the evaluation of, and efforts to improve, Brown's effectiveness and performance of her duties as a principal of an elementary school, specifically Genesee Hill Elementary School and Rainier View Elementary School. Other than yearly performance evaluations and self-evaluations, the remaining documents pertain to the following: Brown's handling of a racially motivated dispute between two teachers at Genesee Hill Elementary School; her use and "inflexible attitude" involving a school district administration intern; her use of school district properties; travel to an administrator's conference at a time when her school was in an uproar; and her handling of an assault on a teacher by a parent at Rainier View Elementary School.

No testimony was taken but the parties submitted briefs and other documentation to the trial court. In addition, the trial court heard oral argument. The trial court also made an in camera review of the requested documents. The trial court held these requested records did not fall within the scope of RCW 42.17.310(1)(b), and were not exempt from disclosure. Included in the decision was the finding that disclosure of these documents would not be highly offensive to a reasonable person, and further that the documents were of legitimate concern to the public. ¹ Further, the trial court concluded disclosure would not violate Brown's right to privacy as defined by statute.

The decision of the trial court is based on the definition of "right to privacy" contained in RCW 42.17.255 and on the case of Brouillet v. Cowles Pub'g Co., 114 Wash.2d 788, 791 P.2d 526 (1990). At the time the trial court made its decision it did not have the benefit of the Supreme Court decision in Dawson v. Daly, 120 Wash.2d 782, 845 P.2d 995 (1993). The trial court held that under the statute's definition of privacy, as applied in Brouillet, for Brown to prevail, either she or the School District had to establish the existence of the fact that disclosure would be highly offensive to a reasonable person and that the information would not be of legitimate concern to the public. Although finding disclosure might potentially cause Brown some inconvenience or discomfort, the court found the documents were not "highly offensive" as contemplated by RCW 42.17.255. In addition, the court found the documents to be of legitimate public interest. The trial court entered findings, conclusions, and an order compelling disclosure. Brown appeals. ²

We hold that the decision of the Supreme Court in Dawson v. Daly, supra, controls this case and do not reach the constitutional issues raised by the parties. ³

In Dawson, a county prosecutor sought an injunction to prevent the disclosure of documents contained in a deputy prosecutor's personnel file, including performance evaluations. Dawson, 120 Wash.2d at 787-88, 845 P.2d 995. The trial court denied the injunction, but on direct review, the Supreme Court reversed that decision.

Under Dawson, performance evaluations of public employees are public records under the public disclosure act upon the satisfaction of two conditions: (1) preparation by a governmental agency, and (2) the evaluations must contain information related to government conduct or to performance of government functions. Dawson, 120 Wash.2d at 788-89, 845 P.2d 995. Here, all of the requested documents in "envelope 2" are evaluative in nature as they relate to the performance of Brown as principal of two elementary schools. Therefore, under Dawson the requested documents are "public records" within the meaning of the public disclosure act.

As to Brown's claims, the Dawson court creates a presumption which strongly favors nondisclosure of performance evaluations such as those here. The Dawson court stated:

The sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence is sufficiently well known to be an appropriate subject of judicial notice.

(Footnote omitted.) Detroit Edison Co. v. NLRB, 440 U.S. 301, 318, 59 L.Ed.2d 333, 99 S.Ct. 1123 [1133] (1979). This sensitivity goes beyond mere embarrassment, which alone is insufficient grounds for nondisclosure ... Employee evaluations qualify as personal information that bears on the competence of the subject employees.

We hold that disclosure of performance evaluations, which do not discuss specific instances of misconduct, is presumed to be highly offensive within the meaning of RCW 42.17.255.

Dawson, 120 Wash.2d at 797, 845 P.2d 995. Thus, Brown's argument that disclosure of these documents would be highly offensive in regard to her right to privacy is correct under the holding in Dawson.

The court recognized that RCW 42.17.255 does not allow a balancing of the employee's privacy interest against the public interest. However, the court went on to hold that RCW 42.17.010(11) contemplates some balancing of the public interest in disclosure against the public interest in the "efficient administration of government". The Dawson court held that the term "legitimate public concern" used in the earlier cases and in RCW 42.17.255 meant "reasonable". Dawson, 120 Wash.2d at 798, 845 P.2d 995. Consequently, requiring disclosure where the public interest in efficient government could be harmed more than the public would be served, is unreasonable. Accordingly documents will not be disclosed where the public concern is not "legitimate". Dawson, 120 Wash.2d at 798, 845 P.2d 995.

In addition, in Dawson, the Supreme Court held that RCW 42.17.330 creates "an independent basis upon which a court may find that disclosure is not required". Dawson, 120 Wash.2d at 793-94, 845 P.2d 995.

RCW 42.17.330 states in part:

Court protection of public records. The examination of any specific public record may be enjoined if, upon motion and affidavit ... the superior court for the county in which the movant resides or in which the record is maintained, finds that such examination 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.

Before the lower court, the School District argued the requested documents should be exempt from disclosure because public education is a vital government function requiring effective evaluation systems of the teachers andadministrators. The School District claims the evaluation system would be undermined if it is stripped of confidentiality, which disclosure of these documents would suggest. In other words, the School District makes the argument that it would be poor precedent to allow the blanket disclosure of personnel records containing school district evaluations. It is for these reasons Brown argues the second prong of the "privacy" test is met--there is no public interest in disclosure of the evaluations.

We agree. Legitimate public concern is lacking here for the same reasons found in Dawson. We specifically recognize these reasons with regard to employees of public education. ⁴ As stated in Dawson, the harm outweighs the public interest in disclosure in cases where a review reveals that the evaluations do not discuss specific instances of misconduct or public job performance.

In the case before us there is an argument to be made that some of the documents address concerns about Brown's handling of specific incidents at the schools where she was the principal. There is no discussion of specific instances of misconduct on Brown's part, only shortcomings and performance criticisms, as well as praises. Again, as the Dawson court points out, if disclosure of these evaluations is allowed, the quality of public employee performance will suffer because employees will not receive the guidance and constructive criticism required for them to improve their performance and increase their efficiency. Dawson, 120 Wash.2d at 799, 845 P.2d 995. ⁵

Because a reading of Dawson in conjunction with the facts before this court requires reversal of the trial court's decision regarding the disclosure of the documents...