Cowles Pub. Co. v. State Patrol
| Decision Date | 12 August 1986 |
| Docket Number | No. 7123-5-III,7123-5-III |
| Citation | 44 Wn.App. 882,724 P.2d 379 |
| Parties | , 13 Media L. Rep. 1713 COWLES PUBLISHING COMPANY, Appellant, v. STATE PATROL; Spokane County, Spokane County Sheriff's Department; City of Spokane, Spokane Police Department; and Spokane Police Guild, a non-profit corporation, Respondents. |
| Court | Washington Court of Appeals |
Duane M. Swinton, Witherspoon, Kelley, Davenport & Toole P.S., Spokane, for appellant.
Kenneth O. Eikenberry, Atty. Gen., Thomas G. Holcomb, Jr., Asst. Atty. Gen., Olympia, for State of Washington, Washington State Patrol.
Donald C. Brockett, Pros. Atty., David A. Saraceno, Deputy Pros. Atty., Spokane, for Spokane County; Spokane County Sheriff's Dept.
James C. Sloane, City Atty., Rocco N. Treppiedi, Richard C. Robinson, Asst. City Attys., Spokane, for
City of Spokane; City of Spokane Police Dept.
Gregory G. Staeheli, Kain & Snow, Spokane, for Spokane Police Guild.
Richard W. Kuhling, Paine, Hamblen, Coffin & Brooke, Spokane, for American Civil Liberties Union.
Michael J. Killeen, Davis, Wright, Todd, Riese & Jones, Seattle, for Allied Daily Newspapers.
Leo E. Poort, Seattle, for Wash. Assoc. of Sheriffs & Police Chiefs.
The Spokesman-Review and Spokane Chronicle (newspapers) appeal the Superior Court's order denying disclosure of certain internal investigatory records compiled by three law enforcement agencies (agencies). We hold (1) the court erred in not applying the privacy test set out in Hearst Corp. v. Hoppe, 90 Wash.2d 123, 580 P.2d 246 (1978); (2) the officers' names were not exempt on the basis of the personal information exemption provided in RCW 42.17.310(1)(b); (3) the investigative agency exemption as provided in RCW 42.17.310(1)(d) is not applicable; and (4) the general personal privacy interest enunciated in In re Rosier, 105 Wash.2d 606, 717 P.2d 1353 (1986), decided while this case was on appeal, is not applicable. Accordingly, we reverse.
During the summer of 1983, the newspapers' reporters, investigating an incident in which two Spokane police officers shot and killed a man, were told those officers may have been involved in a prior incident in which they allegedly used excessive force. The reporters also heard that the prior incident generated a citizen's complaint resulting in the officers being reprimanded. In an effort to substantiate this information, the newspapers requested, pursuant to the provisions of the public disclosure act, RCW 42.17, that the Spokane Police Department release all internal investigation records pertaining to citizens' complaints against police officers; the newspapers sought the information on the same basis available to a private citizen. This request was later amended to seek only those records or files generated by complaints filed during 1983 and which were determined to be true following an internal affairs investigation, i.e., "sustained." Similar requests were made to the Spokane County Sheriff's Department and the Washington State Patrol, relating only to instances occurring within Spokane County during 1983.
The three agencies took identical positions; they would provide only edited copies of the documents requested and would delete information relating to the "identity" of (1) the officers involved, (2) the complaining parties, and (3) other witnesses who had been interviewed. The agencies claimed the deletions were necessary to protect the privacy interests of the persons named in the documents, necessary to insure effective internal affairs investigations, and the confidential reporting of complaints. RCW 42.17.260(1).
Subsequently, the Spokane Police Department and the Spokane Sheriff's Department did release eight edited files with the aforementioned deletions. The Washington State Patrol offered to provide similar information, but was not requested to do so. 1
The newspapers initiated this action and obtained an order requiring the three agencies to show cause why they refused to disclose the unedited versions of the records. RCW 42.17.340(1). The Spokane Police Guild was allowed to intervene and a testimonial hearing was held on July 12 and 13, 1984.
The following facts, developed at the testimonial hearing, are not in serious dispute. The pattern of investigation is similar with each agency. They maintain an internal affairs division, which upon receipt of a complaint, investigates the underlying facts. The officer involved is required to disclose his or her recollections with the understanding that no facts thus related may be used in any criminal investigation. The officer does not have the right to interrogate other witnesses, is not entitled to assert the privilege against self-incrimination, and is subject to dismissal upon refusal to respond. Seattle Police Officers' Guild v. Seattle, 80 Wash.2d 307, 494 P.2d 485 (1972). On the basis of these interviews and any other evidence, the head of the agency makes a determination whether to sustain the complaint and impose a sanction or dismiss it. Approximately 10 percent of the complaints registered either by citizens or from within an agency are sustained. From that determination the officer may appeal and is accorded a public hearing. RCW 43.43.070 (Washington State Patrol); RCW 41.14.120 (county sheriffs); and RCW 41.12.090 (city police). 2
Testimony also indicated the internal affairs investigative files are maintained separately from the officer's personnel file, although a notice of sanction is placed in the personnel file. The Washington State Patrol disseminates information concerning sanctions through its Teletype network to each of its divisional offices, which in turn discloses the name of the disciplined officer and the infraction.
Additionally, officers of each agency testified concerning the apprehension and anxiety arising from the filing of such a complaint; these effects are felt not only by the officers, but also the officers' families and the department. This testimony was supported by a police psychologist with extensive experience in the state of California. He testified that the normal high level of stress accompanying the duties of an officer was significantly increased by the added stress of an internal affairs division investigation. He also addressed the stress, aggravation, and humiliation visited upon family members of officers who complained against colleagues. The psychologist expressed a concern that disclosure of this information could result in a "code of silence" amongst the officers, resulting in instances of misconduct not being reported.
Based on this testimony, the court entered findings of fact, conclusions of law, and an order concluding the internal investigative reports were exempt from disclosure. Specifically, the court found release of the names of the individual officers, coupled with other factual data in the reports, would violate the officers' rights of privacy within the context of the personal information exemption, RCW 42.17.310(1)(b). Further, the court held the requested information constituted "specific investigative records" and concluded the nondisclosure of the officers' names was "essential to effective law enforcement" as exempt under RCW 42.17.310(1)(d).
This act was enacted by initiative in November 1972; it contains seven separate sections, codified in RCW 42.17; the sections with which we are concerned are codified in RCW 42.17.250-.340, "Public Records." The basic purpose of this act
is to provide a mechanism by which the public can be assured that its public officials are honest and impartial in the conduct of their public offices....
... [It] is to allow public scrutiny of government, rather than to promote scrutiny of particular individuals who are unrelated to any governmental operation.
In re Rosier, supra, 105 Wash.2d at 611, 717 P.2d 1353. The act's provisions are to be construed in favor of permitting full public access to government records commensurate with individual privacy and the continued efficient administration of the government.
The act does provide for certain exemptions, but as Hearst notes, the act is to be liberally construed to require expansive disclosure. Hearst, 90 Wash.2d at 128, 580 P.2d 246. Accordingly, a positive duty exists to disclose public records unless the information contained therein falls within one of the specific exemptions. Given that the act is to be liberally interpreted, these exemptions are narrowly construed, Barfield v. Seattle, 100 Wash.2d 878, 884, 676 P.2d 438 (1984); the burden of proof is on the agency seeking to prevent disclosure to demonstrate that the requested information falls within an exemption. In re Rosier, supra, 105 Wash.2d at 616, 717 P.2d 1353 (citing Hearst ). Moreover, RCW 42.17.340(2) mandates that "[c]ourts 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." (Italics ours.)
Turning specifically to the standard of review, RCW 42.17.340(2) states "[j]udicial review ... shall be de novo"; that standard of review, however, is applicable to the superior court. Subsequent review of the superior court's factual determinations is not de novo, unless the record "consists entirely of written and graphic materials [with] no trial court assessment of witnesses' credibility or competency." In re Rosier, supra at 616, 717 P.2d 1353.
Here, much if not all of the evidence presented to the Superior Court consisted of witness testimony. All but two of the trial court's findings are unchallenged. Unchallenged factual findings are verities for purposes of our review. Yakima Cement Prods. Co. v. Great Am. Ins. Co., 93 Wash.2d 210, 608 P.2d 254 (1980). The newspapers do challenge two of the findings of fact, namely: (1)...
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