COWLES PUB v. PIERCE COUNTY PROSECUTORS

• Decision Date: 03 May 2002
• Docket Number: No. 27114-1-II.,27114-1-II.
• Citation: 111 Wash.App. 502,45 P.3d 620
• Court: Washington Court of Appeals
• Parties: COWLES PUBLISHING CO., Appellant, v. PIERCE COUNTY PROSECUTOR'S OFFICE, Pierce County, Washington; Gerald A. Horne, Prosecuting Attorney, Respondents, and Robert L. Yates, Jr., Intervenor/Respondent.

45 P.3d 620

111 Wash.App. 502

COWLES PUBLISHING CO., Appellant, v. PIERCE COUNTY PROSECUTOR'S OFFICE, Pierce County, Washington; Gerald A. Horne, Prosecuting Attorney, Respondents, and Robert L. Yates, Jr., Intervenor/Respondent.

No. 27114-1-II.

Court of Appeals of Washington, Division 2.

May 3, 2002.

Mary Katherine Young High, Tacoma, Douglas Warren Vanscoy, Gerald Thomas Costello, Barbara L. Corey-Boulet, Pierce Co. Deputy Pros. Attys, Tacoma, Roger A. Hunko, Law Office of Wecker Hunko Bougher, Port Orchard, for Respondents.

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

ARMSTRONG, J.

The Pierce County Prosecutor denied a Spokane newspaper's request to copy materials that Robert Yates, Jr. submitted urging the Prosecutor not to seek the death penalty for two murder charges against Yates. The newspaper appeals. We hold that the mitigation package qualifies as an investigative record, protection of which is essential to effective law enforcement and preservation of privacy rights. Because the mitigation package is exempt from disclosure, we affirm.

FACTS

Robert Yates, Jr. pleaded guilty to thirteen counts of murder and one count of attempted murder in Spokane County. As part of a plea bargain, the State agreed not to seek the death penalty. Meanwhile, the Pierce County Prosecuting Attorney charged Yates with two counts of murder.

Yates submitted a mitigation package to the Pierce County Prosecutor, urging the prosecutor not to seek the death penalty.¹ A reporter from a Spokane newspaper, The Spokesman Review, requested a copy of the mitigation package from the Pierce County Prosecutor under the Public Disclosure Act, Chapter 42.17 RCW. The prosecutor refused to disclose the package, citing two of the Act's specific exemptions, Yates' right to a fair trial and various other grounds.

Cowles Publishing Co., which owns The Spokesman Review, filed an action in Pierce County Superior Court to compel disclosure of the mitigation package. After reviewing the mitigation package in camera, the trial court agreed with the prosecutor and denied disclosure. Cowles appeals. We have allowed Yates, who also opposes disclosure, to intervene.

ANALYSIS

The Public Disclosure Act requires disclosure of "all public records" unless an exemption applies. RCW 42.17.260(1); Newman v. King County, 133 Wash.2d 565, 571, 947 P.2d 712 (1997). The Act defines a public record as "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics." RCW 42.17.020(36). The parties agree that Yates' mitigation package is a public record.

When a party seeks disclosure of a public record, the burden is on the government agency to demonstrate that the record is exempt from disclosure. RCW 42.17.340(1); Newman, 133 Wash.2d at 571, 947 P.2d 712. We review a decision under the Public Disclosure Act de novo. RCW 42.17.340(3); Progressive Animal Welfare Soc'y (PAWS) v. Univ. of Wash., 125 Wash.2d 243, 252, 884 P.2d 592 (1994). The Act's disclosure provisions are liberally construed; its exemptions are "precise, specific, and limited." PAWS, 125 Wash.2d at 258, 884 P.2d 592.

Generally, the Act does not protect entire records; it provides for deletion of the portions protected by a specific exemption and disclosure of the remainder. RCW 42.17.260(1), .310(2); PAWS, 125 Wash.2d at 261, 884 P.2d 592; but see Newman, 133 Wash.2d at 574-75,

947 P.2d 712 (protecting files in open criminal investigations). For instance, the Act provides for deletion of information if disclosure would unreasonably invade personal privacy interests, but only if a specific exemption protects the information. RCW 42.17.260(1) (providing for deletion of "identifying details," but only "[t]o the extent required to prevent an unreasonable invasion of personal privacy interests protected by RCW 42.17.310 and 42.17.315[.]"); see also RCW 42.17.310(2) ("[T]he exemptions of this section are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought.").

The prosecutor relies in part on the investigative record exemption under RCW 42.17.310(1)(d). This exemption protects:

Specific intelligence information and specific investigative records complied 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.

RCW 42.17.310(1)(d). Thus, the government must show that (1) the information it seeks to protect is intelligence information or an investigative record, (2) the information was compiled by law enforcement, and (3) protecting the information is essential (a) to effective law enforcement or (b) to protect a person's right to privacy.

1. Investigative Record

Cowles argues that the mitigation package is not an investigative record. Our Supreme Court has defined an "investigative record" under RCW 42.17.310(1)(d) as a record "compiled as a result of a specific investigation focusing with special intensity upon a particular party." Dawson v. Daly, 120 Wash.2d 782, 792-93, 845 P.2d 995 (1993) (quoting Laborers Int'l Union of N. Am., Local No. 874 v. City of Aberdeen, 31 Wash. App. 445, 448, 642 P.2d 418 (1982)). And "[t]he investigation involved must be `one designed to ferret out criminal activity or to shed light on some other allegation of malfeasance.' "Dawson, 120 Wash.2d at 793, 845 P.2d 995 (quoting Columbian Publ'g Co. v. City of Vancouver, 36 Wash.App. 25, 31, 671 P.2d 280 (1983)). The trial court found that the "[i]nvestigation is ongoing with regard to [the decision on whether to seek the death penalty]. All parties are conducting further investigations, seeking discovery and preparing for trial[.]" CP at 48.

Cowles contends that the exemption does not apply because when the prosecutor obtained the mitigation package, he was not attempting to "ferret out criminal activity." The "ferret out" language originated in Columbian Publishing, where a newspaper sought disclosure of statements police officers had submitted to the mayor in support of a no-confidence vote on their chief. We held that the investigative exemption did not protect the statements because "[t]his is purely a personnel matter, not an investigation in the intended sense, i.e., one designed to ferret out criminal activity[.]" Columbian Publ'g, 36 Wash.App. at 31, 671 P.2d 280. The "ferret out" phrase was repeated in Dawson, where an expert witness sought documents from the prosecutor used in cross-examination of the expert together with a copy of the personnel file of one of the deputy prosecutors. The Supreme Court held that the investigative exemption did not apply because the prosecutor was not investigating the expert for any criminal activity. Dawson, 120 Wash.2d at 793, 845 P.2d 995.

The "ferret-out" test may be appropriate in analyzing whether police department records qualify for the investigative exemption. It is little help here because a prosecutor's office does not generally conduct the initial crime investigation. Rather, the police first investigate crimes and then turn the information over to the prosecutor's office. Thus, the prosecutor's office would rarely be entitled to the investigative exemption under the ferreting-out test. But a prosecutor's office does investigate the accused and the alleged facts of the crime while preparing for trial. And one part of a prosecutor's investigation focuses on the question of an appropriate penalty. Indeed, in death penalty cases, the prosecutor is obligated to make an individualized decision as to whether to seek the death penalty. State v. Pirtle, 127 Wash.2d 628, 642, 904 P.2d 245 (1995).

Here, the prosecutor was investigating the critically important decision on the death penalty. The investigation was focused on Yates. And although the prosecutor did not conduct an original crime investigation and, thus, was not ferreting out criminal activity in that sense, the prosecutor was investigating Yates, his background, and his family, to aid in deciding whether to seek the death penalty, a decision mandated by the duties of the prosecutor's office. We hold that the mitigation package qualifies as an investigative record under RCW 42.17.310(1)(d).

2. Compiled by Law Enforcement

Cowles also contends that the mitigation package is not an investigative record because it was not "compiled by" the prosecutor. But our Supreme Court has rejected this argument and held that "any documents placed in [an] investigation file satisfy the requirement that the information is compiled by law enforcement." Newman, 133 Wash.2d at 573, 947 P.2d 712. This is because "documents that were created for one `purpose ... were not disqualified from being compiled' again later for a different purpose." Newman, 133 Wash.2d at 572, 947 P.2d 712 (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 155, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989)). Thus, a record compiled by law enforcement need not be created by law enforcement. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 464 (1969) (defining "compile" as "to collect and assemble (written material or items from various sources) into a document or volume [or] to put together.").

Necessity of Nondisclosure

Having decided that the mitigation package is a law enforcement investigative record, we must still determine whether nondisclosure is essential either for effective law enforcement or to protect privacy rights.

A. Effective Law Enforcement

Cowles contends that nondisclosure of mitigation packages generally is not essential to effective law enforcement. It maintains...