City of Tacoma v. Tacoma News, Inc.

• Decision Date: 17 April 1992
• Docket Number: No. 13518-3-II,13518-3-II
• Court: Washington Court of Appeals
• Parties: The CITY OF TACOMA, a municipality, Respondent, v. TACOMA NEWS, INC., d/b/a the News Tribune, a Washington corporation, Appellant, DOE FAMILY I, Respondent.

Page 140

65 Wn.App. 140

827 P.2d 1094

The CITY OF TACOMA, a municipality, Respondent, v. TACOMA NEWS, INC., d/b/a the News Tribune, a Washington corporation, Appellant DOE FAMILY I, Respondent.

No. 13518-3-II.

Court of Appeals of Washington Division 2.

April 17, 1992.

As Corrected April 30, 1992.

William E. Holt, John C. Guadnola, Judy Rae Jasprica, and Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Tacoma, for appellant.

William Barker, City Atty., and Kathryn B. Gerhardt, Asst. City Atty., Fredric C. Tausend, Michele A. Gammer, and Preston Thorgrimson Shidler Gates & Ellis, Seattle, for respondents.

Kenneth O. Eikenberry, Atty. Gen., and Jaqueline B. Rosenblatt, Asst. Atty. Gen., Tacoma, amicus curiae for respondents.

MORGAN, Judge.

The Morning News Tribune sought access to police investigation materials by invoking the Public Disclosure Act, RCW 42.17. The trial court denied access, and we affirm.

In August, 1989, the Tribune made a request for access to a certain police incident report prepared and possessed by the Tacoma Police Department. Later the same month, the Tribune made a second request for access to certain letters also possessed by the police department. The Tribune made both requests pursuant to the Public Disclosure Act, RCW 42.17.

The police incident report concerned an allegation that a parent had criminally abused a dependent minor. The allegation came solely from an anonymous hearsay informant. The allegation was investigated or reviewed by several agencies, including the Tacoma Police Department (TPD), the Department of Social and Health Services, the Pierce County Prosecutor's Office and the King County Prosecutor's Office. Each agency found that the allegation could not be substantiated.

Several months after it was determined that the allegation could not be substantiated, several letters supportive of the parent were received by TPD. These letters related directly to the subject matter of the investigation. They were not attached to the incident report or filed with the recordkeeping division of TPD. The Tribune asserts that they were filed in the police chief's correspondence file.

The city denied disclosure of the incident report and the letters. It then filed a declaratory judgment action naming the Tribune ¹ and, by pseudonym, other parties thought to be interested. ² The Tribune asserted that the requested documents pertained to a candidate for Mayor of Tacoma, and that the candidate was a public figure. It further asserted that the candidate was supported for election by the police union, a fact which, according to the Tribune, raised the possibility that the police might not have conducted a full and fair investigation. The trial court conducted a show cause hearing that included an in camera review of the disputed documents. The trial court denied disclosure, and the Tribune appealed.

We review de novo. RCW 42.17.340(2). The city is a public agency, RCW 42.17.020(1), and the disputed documents are public records. RCW 42.17.020(26). Public records possessed by a public agency are subject to disclosure unless an exemption or prohibition applies. RCW 42.17.260. Exemptions are to be narrowly construed, Hearst Corp. v. Hoppe, 90 Wash.2d 123, 128, 580 P.2d 246 (1978), and an agency refusing disclosure has the burden of showing that an exemption applies. RCW 42.17.340.

RCW 42.17.310 catalogues various exemptions. RCW 42.17.310(1)(d) exempts from disclosure

Specific intelligence information and specific investigative records compiled by investigative, law enforcement and penology agencies, ... the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.

For RCW 42.17.310(1)(d) to apply, three elements must be met. (1) The disputed documents must be specific investigatory records or contain specific intelligence information; (2) they must have been compiled by an investigative, law enforcement or penology agency; and (3) nondisclosure must be essential to either (a) effective law enforcement or (b) the protection of any person's right of privacy. Tacoma News, Inc. v. Tacoma-Pierce Cy. Health Dept., 55 Wash.App. 515, 520, 778 P.2d 1066 (1989), review denied, 113 Wash.2d 1037, 785 P.2d 825 (1990).

The first two elements are met here. The disputed documents are specific investigative records compiled by a law enforcement agency. ³

The third element supplies the central issue. We focus on privacy rather than effective law enforcement because the parties have done that at trial and on appeal, and because the trial court ruled on the basis of privacy. ⁴

The Washington legislature defined privacy in RCW 42.17.255. That statute provides in part:

A person's "right to privacy," "right of privacy," "privacy," or "personal privacy," as these terms are used in this chapter, is invaded or violated 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.

The Tribune does not contest that disclosure of the disputed documents would be highly offensive to a reasonable person. Therefore, the privacy issue is whether an unsubstantiated allegation of child abuse is of legitimate concern to the public.

In its main argument, the Tribune asserts (1) that the information in the disputed documents alleges child abuse; (2) that it pertains to a political candidate; (3) that a political candidate is a public figure for purposes of the common law; and (4) that the information, if true, is a matter of legitimate public concern. Relying on RCW 42.17.255, the Tribune then says (5) that the city and the trial court were precluded from considering whether the information was true or false, or in other words, that the city and the trial court were required to assume that the information was true. ⁵ It therefore concludes that the disputed documents are a matter of legitimate concern to the public.

We assume that the first four of these propositions are correct. ⁶ The fifth, however, is incorrect. To show why, we start with the common law.

For much of this century, the right to privacy has been protected by the common law tort of invasion of privacy. According to the Restatement (Second) of Torts (hereinafter "Restatement"), that tort can be committed in four ways, Restatement § 652A, Eastwood v. Cascade Broadcasting Co., 106 Wash.2d 466, 469, 722 P.2d 1295 (1986), Mark v. Seattle Times, 96 Wash.2d 473, 497, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982), two of which are pertinent here. ⁷

Restatement § 652D describes when liability will be imposed for publicizing a true statement. Restatement 383. It provides:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

Restatement § 652E describes when liability will be imposed for publicizing a false statement. Magenis v. Fisher Broadcasting, Inc., 103 Or.App. 555, 798 P.2d 1106, 1108 (1990); Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 478 (Mo.S.Ct.1986); Renwick v. News and Observer Publishing Co., 310 N.C. 312, 312 S.E.2d 405, 415 (1984) (Meyer, J., concurring and dissenting). It provides:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

These sections contemplate that whether information is true or false will be considered in the course of deciding whether the release or publication of such information will violate privacy. As can be seen, the two sections contain different criteria, and until it is decided whether the information in question is true or false, there is no way of knowing which set of criteria should be applied.

The language that is now RCW 42.17 was first enacted in 1972. Initiative 276 (1972); Laws 1973, Ch. 1, § 26. It exempted certain public records from disclosure when disclosure would violate the right to privacy. RCW 42.17.310(1)(b), (c), (d). ⁸ However, it did not define the right to privacy. Hearst Corp. v. Hoppe, 90 Wash.2d at 135, 580 P.2d 246.

In Hearst Corp. v. Hoppe, supra, the Supreme Court was called upon to fill the void. It said that "the legislature intended the right of privacy to mean what it meant at common law," 90 Wash.2d at 135, 580 P.2d 246, and that "the most applicable privacy right would appear to be that expressed in tort law." 90 Wash.2d at 135, 580 P.2d 246. Because the plaintiff sought records containing information the truth of which was not disputed, the court adopted and applied Restatement § 652D. 90 Wash.2d at 136, 580 P.2d 246.

The Hearst court was not dealing with records said to contain false information, and it did not preclude the application of § 652E in a case involving such records. By the same token, it did not preclude public agencies or courts from considering, in a proper case, whether information set forth in public records was true or false. As noted previously, its holdings were that the legislature intended the right of privacy to mean what it meant in the common law of torts, and that § 652D should be applied because true information was being dealt with. It did not alter the fact that the common law of torts includes both Restatement § 652D and Restatement § 652E; that § 652D sets forth criteria for deciding whether true information invades the right to privacy, while § 652E sets forth different criteria for deciding...