Cowles Pub. Co. v. SPOKANE POLICE DEPT.

• Decision Date: 21 October 1999
• Docket Number: No. 67290-3.,67290-3.
• Citation: 987 P.2d 620,139 Wash.2d 472
• Court: Washington Supreme Court
• Parties: COWLES PUBLISHING COMPANY, Petitioner, v. SPOKANE POLICE DEPARTMENT, CITY OF SPOKANE, WASHINGTON, Respondent.

987 P.2d 620

139 Wash.2d 472

COWLES PUBLISHING COMPANY, Petitioner, v. SPOKANE POLICE DEPARTMENT, CITY OF SPOKANE, WASHINGTON, Respondent.

No. 67290-3.

Supreme Court of Washington, En Banc.

Argued June 17, 1999.

Decided October 21, 1999.

As Amended on Denial of Reconsideration January 7, 2000.

Witherspoon, Kelley, Davenport & Toole, Duane Michael Swinton, Spokane, for Petitioner.

Cynthia Ellen McMullen, Spokane, for Respondent.

JOHNSON, J.

In Newman v. King County, 133 Wash.2d 565, 947 P.2d 712 (1997), we held the "investigative records" exception to the public disclosure act categorically exempted from disclosure all police investigative records in an unsolved, "open" investigation. The question in the present appeal is whether the same categorical exemption we adopted in Newman applies in a case where the suspect has been arrested and the case referred to the prosecutor for a charging decision. Interpreting Newman, the Court of Appeals held all records in a police investigative file are categorically exempt from disclosure pending completion of enforcement proceedings. The Court of Appeals also held a requested booking photograph was separately protected from disclosure under RCW 70.48.100(2), the City and County Jails Act.

We reverse in part and affirm in part.

FACTS

On May 30, 1997, Assistant Spokane City Attorney Milt Rowland was arrested for driving under the influence, reckless driving, leaving the scene of an accident, and attempted assault. On the same day as the arrest the Spokane Police Department (Department) officially referred the case to the prosecutor, requesting that charges be filed.

On the day of the arrest, details of the incident were made available orally by a police spokesperson resulting in news stories. On June 3, 1997, a reporter for THE SPOKESMAN REVIEW (published by Cowles Publishing Co. (Cowles)) requested a copy of Rowland's "booking photo" from the Department. On June 6, 1997, a second reporter requested the police report detailing the incident (incident report).

On June 9, 1997, the Department officially responded by letter indicating "[u]pon closure of this case within the judicial system, the Spokane Police Department will release investigative information." Clerk's Papers at 9. The letter also stated information would be released if the prosecutor's office determined "disclosure will not adversely affect the integrity of the case." Clerk's Papers at 9. The Department cited to the "bench-bar-press statement of principles and considerations" as part of its decision-making process. Nevertheless, the Department did release the incident report "cover sheet." This included the name of the defendant, the charge, the name of the officer who was assaulted, and the date, time, and location of the incident. On June 11, the Department officially declined to release the booking photograph, citing again to the bench-bar-press statement as the basis for its decision.

On July 3, 1997, Cowles filed suit seeking court-ordered release of the police report and related records concerning the Rowland incident, as well as the booking photograph. Following argument, but without any in camera review of the documents, the court ruled in favor of Cowles and ordered the release of the police incident report and booking photograph. The Department appealed and a stay was granted.

Initially, the Court of Appeals refused to reach the merits of the case. In an unpublished opinion, the court found the case moot because, just prior to oral argument, the Department released the entire investigative file following Rowland's plea of guilty. Cowles Publ'g Co. v. Spokane Police Dep't, No. 16870-1-III, 92 Wash.App. 1018, 1998 WL 283525 (Wash.Ct.App. June 2, 1998). Upon reconsideration, however, the court withdrew its earlier opinion and issued a decision which reached the merits. Cowles Publ'g Co. v. Spokane Police Dep't, No. 16870-1-III (Wash.Ct.App. Sept. 3, 1998).

Between the time of the trial court's decision and oral argument at the Court of Appeals, we decided Newman v. King County, 133 Wash.2d 565, 947 P.2d 712. In its September 1998 decision, the Court of Appeals held Newman controlled. Applying Newman, the court reasoned the only inquiry was whether the police investigation was leading to an enforcement proceeding. Finding that it was, the court held the investigation was "open" within the meaning of Newman and, thus, all records in the police investigative file were categorically exempt from disclosure until criminal proceedings were complete. Citing RCW 70.48.100(2) (with limited exceptions, release of jail records prohibited), the court also found the booking photo was statutorily exempt from disclosure at any time. Accordingly, the Court of Appeals reversed the trial court and held the police were exempt from disclosing both the incident report and the booking photo at the time disclosure was requested. Cowles Publ'g Co., No. 16870-1-III, slip op. at 5 (Sept. 3, 1998).

We granted review.

ANALYSIS

The public disclosure act (PDA), RCW 42.17.250, mandates broad disclosure of all public records upon request. See, e.g., Newman, 133 Wash.2d at 570,

947 P.2d 712; Limstrom v. Ladenburg, 136 Wash.2d 595, 603-04, 963 P.2d 869 (1998). Statutory exemptions are narrowly construed and the agency claiming the exemption bears the burden of proving that the documents requested fall within the scope of the exemption. Newman, 133 Wash.2d at 571,

947 P.2d 712. In this case, the Department claims, at the time of the request, the investigative records at issue were exempt from disclosure under RCW 42.17.310(1)(d), the "investigative records" exemption. The exemption applies to:

Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and 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.

In Newman, we held this exemption protected the entire investigative file in an unsolved murder case. Newman, 133 Wash.2d at 574, 947 P.2d 712. Although the decision includes language to the effect that any "open" police investigative file categorically falls within the statutory exemption for "effective law enforcement," a close reading of the case demonstrates that we were reluctant to have the courts second-guess law enforcement agencies regarding release of sensitive information in unsolved cases:

Requiring a law enforcement agency to segregate documents before a case is solved could result in the disclosure of sensitive information. The determination of sensitive or nonsensitive documents often cannot be made until the case has been solved. This exemption allows the law enforcement agency, not the courts, to determine what information, if any, is essential to solve a case.

Newman, 133 Wash.2d at 574, 947 P.2d 712. Thus, in Newman, we were concerned both with the difficulty police would have segregating information in unsolved cases, and with the propriety of charging courts with responsibility of determining whether nondisclosure was critical to solving the case — a task which we felt was better left to the professional judgment of the police.

These same concerns are not present in a case, as here, where the suspect has already been arrested and the matter referred to the prosecutor for a charging decision. In such circumstances, the risk of inadvertently disclosing sensitive information that might impede apprehension of the perpetrator no longer exists. The Department tacitly admits as much here in that its argument focuses exclusively on protecting the trial process and the privacy rights of the defendant. The Department argues "effective law enforcement" encompasses more than "the police officer's investigation of the incident," but necessarily includes "the ability to properly conduct trial preparation, witness examination, and the trial itself." Pet. for Review at 10.

The Department does not argue that disclosure might have inadvertently compromised apprehension of a suspect, divulged sophisticated police investigative techniques, or disrupted the sharing of information between law enforcement agencies. Unlike Newman, this case does not present a circumstance in which the police are institutionally better suited to determine whether nondisclosure is essential to effective law enforcement. As such, the Department fails to establish in this case how nondisclosure of the requested information meets the requirements of RCW 42.17.310(1)(d) or falls within the scope of Newman.

As to the protection of the trial process, we have already held not even prosecution files are categorically exempt from disclosure. Limstrom, 136 Wash.2d at 613, 963 P.2d 869. Instead, documents are protected from disclosure to the extent they are attorney "work product" under the civil discovery rules. Limstrom, 136 Wash.2d at 613, 963 P.2d 869. Generally, nothing in a police investigative file would be considered attorney work product. Thus, even under Limstrom, there would be no protection from disclosure and no burden placed on the requester to show the information is available from other sources. See Limstrom, 136 Wash.2d at 614-15,

963 P.2d 869 (if documents are not work product, "as a general matter" they should be disclosed).

Although we agree with the Department that nondisclosure may, under specific circumstances, still be necessary to protect pending enforcement proceedings in an individual case, courts are as qualified to review the potential affect of disclosure on the trial process as are the police or prosecutor. The protection of enforcement proceedings is not a circumstance where the police, exercising their professional judgment, are in a better position to make disclosure decisions. Accordingly, to the extent nondisclosure may be necessary in a case such as this, an in camera...