Dawson v. Daly

• Decision Date: 18 February 1993
• Docket Number: No. 58570-9,58570-9
• Citation: 845 P.2d 995,120 Wn.2d 782
• Court: Washington Supreme Court
• Parties: Seth R. DAWSON, in his official capacity as Snohomish County Prosecuting Attorney, Appellant, v. Lawrence DALY and Clifford Freed.

Page 782

120 Wn.2d 782

845 P.2d 995

Seth R. DAWSON, in his official capacity as Snohomish County Prosecuting Attorney, Appellant, v. Lawrence DALY and Clifford Freed.

No. 58570-9.

Supreme Court of Washington En Banc.

Feb. 18, 1993.

Seth R. Dawson, Pros. Atty., and Thomas Herrick Robertson, Deputy Pros. Atty., Everett, for appellant.

Mestel & Muenster, John R. Muenster, Seattle, for respondents.

Pamela G. Bradburn, Lynnwood, on behalf of WSCCCE, AFSCME, and AFL-CIO, amici curiae, for appellant.

Norm Maleng, Pros. Atty., Mary F. Perry, Sr. Deputy, Seattle, for Washington Ass'n of Pros. Attys.; Mark Sidran, Seattle City Atty., Elizabeth M. Rene, Asst., Seattle, on behalf of Washington State Ass'n of Mun. Attys., amici curiae for appellant.

Christine O. Gregoire, Atty. Gen., Chip Holcomb, Asst., Olympia, for amicus for appellant.

BRACHTENBACH, Justice.

The issue presented by this case is whether the public disclosure act, RCW 42.17, requires the Snohomish County prosecutor's office (prosecutor's office) to give a citizen (1) copies of documents compiled for use in cross-examining an "expert" witness (the requesting citizen) who frequently testifies as a defense witness in child sexual abuse cases prosecuted in Snohomish County and (2) a copy of the personnel file of a deputy prosecutor. The trial court ruled that these documents were not within any of the exemptions to the public disclosure act. We reverse.

The request for disclosure was made on behalf of Lawrence Daly, a former law enforcement officer who appears frequently as a defense expert witness in child sex abuse prosecutions in Snohomish County. Employees of the prosecutor's office have developed files on Daly for use in challenging his qualifications, in cross-examining him, and in attempting to impeach him when he appears as a defense witness in child sexual abuse prosecutions.

Paul Stern, a deputy prosecutor, created one of the files. William France, a child protection specialist employed by the prosecutor's office, compiled a second file. These files contain three categories of documents: (1) intraagency memoranda and notes by Stern and France concerning Daly; (2) correspondence with third parties about Daly; and (3) articles, books, testimony, affidavits, and other statements by Daly with notations added by employees of the prosecutor's office. France stated that his file had been developed to assist deputy prosecutors in preparing for two previous prosecutions.

Attorney Clifford Freed, acting on Daly's behalf, made a public disclosure act request for copies of all files concerning Daly and for a copy of Stern's personnel file. The stated purpose of this request was to determine whether Stern or France had defamed Daly or tortiously interfered with Daly's business.

The prosecutor disclosed the contents of Stern's personnel file except for the following: (1) letters written by Stern or on his behalf seeking employment; (2) a copy of Stern's resume; (3) notes taken during Stern's employment interview; (4) a letter concerning that interview; (5) performance evaluations; and (6) requests for verification of employment. No part of Stern's file on Daly was disclosed. As to France's file on Daly, only correspondence with one professor and a copy of one newspaper article concerning Daly were disclosed.

In a letter to Daly's attorney, the prosecutor claimed that all other requested documents were exempted from disclosure by specific statutory exemptions and informed him that the prosecutor intended to seek a permanent injunction against disclosure of the documents withheld. Simultaneously, the prosecutor sought an injunction.

The trial court denied the injunction as to all documents except Stern's resume, the letters relating to Stern's application for employment, and the notes taken during Stern's interview. We granted direct review of the trial court's ruling. The order was stayed pending review.

De novo review of the trial court's order is appropriate because the record consists only of affidavits, memoranda of law, and other documentary evidence. Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 35-36, 769 P.2d 283 (1989).

The public disclosure act (the act), RCW 42.17, was enacted in 1972 by initiative. The act is a "strongly worded mandate for broad disclosure of public records." Spokane Police Guild, at 33, 769 P.2d 283. To "promote complete disclosure", RCW 42.17.010 requires that the act be construed liberally. The basic duty of disclosure is set out in RCW 42.17.260(1), which provides:

(1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of ... RCW 42.17.310 ... or other statute which exempts or prohibits disclosure of specific information or records.

(Italics ours.) As a threshold matter, this provision indicates that the act will only apply when an "agency" is requested to disclose "public records".

RCW 42.17.020(1) defines "Local agency" to include "every county ... or any office, department ... or agency thereof...." The Snohomish County prosecutor's office is an agency covered by the act because it is an office of a county.

The next question is whether the requested documents are "public records" covered by the act. RCW 42.17.020(27) defines "public record":

"Public record" includes 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.

The documents in the files compiled on Daly are public records because they are writings relating to the performance of prosecutorial functions, and they are used by the prosecutor's office in carrying out those functions. The evaluations of Stern's performance are also public records because they are prepared by the prosecutor's office, and they contain information relating both to the conduct of government and to the performance of governmental, prosecutorial functions. The requests for verification of Stern's employment, however, are not public records. Verification requests seeking information about an employee's position, salary, and length of service relate neither to the conduct of government, nor to the performance of any governmental function. Verification requests are not within the scope of the act and are not subject to disclosure.

Once documents are determined to be within the scope of the act, disclosure is required unless a specific statutory exemption is applicable. RCW 42.17.310(1) lists categories of records that are exempt from disclosure. Because the act favors disclosure, the statutory exemptions must be construed narrowly. Brouillet v. Cowles Pub'g Co., 114 Wash.2d 788, 793, 791 P.2d 526 (1990). The agency claiming an exemption bears the burden of proving that the documents requested are within the scope of the claimed exemption. Brouillet, at 793, 791 P.2d 526.

The prosecutor claims that the files on Daly are exempt under RCW 42.17.310(1)(j), the discovery rules exemption. RCW 42.17.310(1)(j) exempts:

Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

This exemption incorporates the work product doctrine as a "rule of pretrial discovery". See Overlake Fund v. Bellevue, 60 Wash.App. 787, 795, 810 P.2d 507, review denied, 117 Wash.2d 1022, 818 P.2d 1098 (1991). Neither the act nor our cases give any guidance concerning the proper scope or interpretation of this exemption. The parties and the trial court agreed that the proper application of this exemption depends on the construction of the term "controversy", which is not defined in the statute.

The trial court found that the term "controversy" as used in this context means existing litigation. The prosecutor asks us to instead adopt a dictionary definition, "a prolonged public dispute, debate or contention", as the proper interpretation of controversy. We reject the prosecutor's suggested interpretation because it violates the requirement that the act's exemptions be construed narrowly. See Brouillet, 114 Wash.2d at 793, 791 P.2d 526. We also reject the trial court's suggested construction. Although the trial court did give the exemption a narrow interpretation, the trial court's interpretation brings RCW 42.17.310(1)(j) into conflict with our court rules establishing the work product rule. The protection of the work product rule is triggered prior to the official initiation of litigation and extends beyond the official termination of litigation. See Heidebrink v. Moriwaki, 104 Wash.2d 392, 400, 706 P.2d 212 (1985) (explaining that the work product rule attaches to documents prepared prior to trial when the specific parties involved have expectations that litigation will occur); Pappas v. Holloway, 114 Wash.2d 198, 210, 787 P.2d 30 (1990) (holding that the protection of the work product rule continues after litigation has terminated); Dever v. Fowler, 63 Wash.App. 35, 47, 816 P.2d 1237, 824 P.2d 1237 (1991) (following Pappas ), review denied, 118 Wash.2d 1028, 828 P.2d 563 (1992). Where a court rule and a statute relate to the same subject, they should be "harmonized, and both given effect if possible." Nearing v. Golden State Foods Corp., 114 Wash.2d 817, 821, 792 P.2d 500 (1990).

Our goal in interpreting a statutory provision is to give effect to the intent of the Legislature. Rozner v. Bellevue, 116 Wash.2d 342, 347, 804 P.2d 24 (1991). Where the Legislature has not specifically defined a term used in a statute, resort to a dictionary to give meaning to the term is appropriate. State v. Belgarde, 119 Wash.2d 711, 716-17, 837 P.2d 599 (1992). Black's Law Dictionary defines "controversy" as "[a] litigated...