Fisher Broadcasting-Seattle TV LLC v. City of Seattle

• Decision Date: 12 June 2014
• Docket Number: No. 87271–6.,87271–6.
• Citation: 326 P.3d 688,180 Wash.2d 515
• Parties: FISHER BROADCASTING–SEATTLE TV LLC dba KOMO 4, Appellant, v. CITY OF SEATTLE, a local agency, and the Seattle Police Department, a local agency, Respondents.
• Court: Washington Supreme Court

180 Wash.2d 515

326 P.3d 688

FISHER BROADCASTING–SEATTLE TV LLC dba KOMO 4, Appellant,

v.CITY OF SEATTLE, a local agency, and the Seattle Police Department, a local agency, Respondents.

No. 87271–6.

Supreme Court of Washington, En Banc.

June 12, 2014.

Diane Marie Meyers, Graham & Dunn, Seattle, WA, for Appellant.

Mary Farver Perry, Seattle City Attorney's Office, Seattle, WA, for Respondent.

Bruce Edward Humble Johnson, Eric Stahl, Ambika Kumar Doran, Davis Wright Tremaine LLP, Seattle, WA, Amicus Curiae on behalf of Washington Coalition for Open Government, Allied Daily Newspapers of Washington, D/B Evening Telegram Co., King Broadcasting Co., Kiro–Tv, Inc., McClatchy Company, Seattle Times Company, Seattle Weekly, LLC, Washington Newspaper Publisher Association, Washington State Association of Broadcasters, Morgan Murphy Media, Amicus Curiae on behalf of Hearst Corporation.

Laurie Kathleen Fall Morris, The Defender Association, Seattle, WA, Amicus Curiae on behalf of Defender Association.

Travis Stearns, Washington Defender Association, Seattle, WA, Amicus Curiae on behalf of Washington Defender Association.

Zanetta Lehua Fontes, City of Renton, Leo Edward Poort, Leo Poort, Redmond, WA, John R. Wasberg, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Association of Sheriffs and Police Chiefs.

Daniel Brian Heid, City of Auburn, Auburn, WA, Amicus Curiae on behalf of Washington State Associaiton of Municipal Attorneys.

James Elliot Lobsenz, Carney Badley Spellman, Suzanne Lee Elliott, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

GONZÁLEZ, J.

¶ 1 KOMO news reporter Tracy Vedder made three unsuccessful public records requests to the Seattle Police Department (SPD) relating to “dash-cam” videos taken by SPD officers. We conclude that two of the requests should have been granted.

Facts

¶ 2 Since 2007, SPD's entire patrol fleet has been equipped with in-car video and sound recording equipment. SPD's recording system was manufactured by COBAN Technologies, a private company that provides both the recording equipment and the computer system that manages at least the initial video storage and retrieval. The COBAN system was not integrated into SPD's records management system or its computer aided dispatch system, and at least at the time this case arose, recordings could be searched only by “officer's name, serial number, date and time.” Clerk's Papers (CP) at 403, 440, 454.

¶ 3 SPD's written policy directs officers to use their in-car video recorders to “document all traffic stops, pursuits, vehicle searches and citizen contacts when occurring within camera range.” CP at 88 (SPD Policies and Procedures chapter 17.260). Under this written policy, videos are kept for 90 days unless an officer tags an individual video as “required for case investigation/prosecution,” in which case they are kept for at least three years. Id. Under SPD policy, videos needed longer than three years should be burned onto a DVD and stored in a relevant case file. Otherwise, videos are scheduled to be destroyed after three years.

¶ 4 In 2010, Vedder made both informal requests for information and a series of formal Public Records Act PRA), chapter 42.56 RCW, requests. On August 3, 2010, she asked for user and training manuals on the dash-cam video system. SPD denied this request on the grounds the materials were protected under federal copyright law and RCW 42.56.240(1)'s exception for materials essential to effective law enforcement.

¶ 5 On August 4, 2010, Vedder requested “a copy of any and all Seattle police officer's log sheets that correspond to any and all in-car video/audio records which have been tagged for retention by officers. This request is for such records dating from January 1, 2005 to the present.” CP at 96.¹ On August 10, 2010, SPD's public record's officer, Sheila Friend Gray, responded that no relevant records existed.

¶ 6 The next day, Vedder requested “a list of any and all digital in-car video/audio recordings that have been tagged for retention by Seattle Police Officers from January 1, 2005 to the present. This list should include, but not be limited to, the officer's name, badge number, date, time and location when the video was tagged for retention and any other notation that accompanied the retention tag.” CP at 98. On August 18, SPD denied the request on the grounds that “SPD is unable to query the system in the way you have requested. We can search by individual officer name, date, and time only. We cannot generate mass retention reports due to system limitations. Thus we do not have any responsive records.” CP at 99.

¶ 7 On September 1, 2010, Vedder requested “copies of any and all digital, in-car video/audio recordings from the Seattle Police Department that have been tagged for retention by anyone from January 2007 to the present. The recordings should also include, but not be limited to, corresponding identifying information such as the date, time, location, and officer(s) connected to each unique recording.” CP at 110. SPD contacted COBAN for help with this request. COBAN told SPD that such a list could be generated by running a computer script that COBAN was willing to provide for free, but coding the program to enable mass copying of the videos “will take some real programming” and would cost at least $1,500. CP at 239. SPD denied Vedder's third request on October 1, 2010, telling her, “ ‘SPD is unable to query the system to generate a retention report that would provide a list of the retained videos.’ Without this capability we are unable to respond to your request. Therefore we have no documents responsive to your request.” CP at 254. After Vedder pressed the matter, SPD's attorney told her that the privacy act prevented release of the videos that were less than three years old.

¶ 8 Meanwhile, in February 2011, Eric Rachner requested “a copy of the full and complete database of all Coban D[igital] V[ideo] M[anagment] S[ystem (DVMS) ] activity logs in electronic form.” CP at 40. He suggested since “Coban DVMS system's database runs on Microsoft SQL [ (structured query language) ] server, ... it should be convenient to provide the logs, in electronic form, in their original Microsoft SQL Server format. The responsive records will include all rows of all columns of all tables related to the logging of video-related activity within the Coban DVMS.” Id. After working closely with Rachner, SPD began to provide the records in June. That summer, Rachner showed Vedder what he had received from SPD. According to Vedder, “I was amazed because the COBAN DVMS database provided to Mr. Rachner was exactly the sort of list of videos in electronic format that I had requested on August 11, 2010,” CP at 81.

¶ 9 On September 19, 2011, KOMO sued SPD under the PRA for failing to timely produce records in response to Vedder's August 4, August 11, and September 1, 2010 requests, among other things. The next day the SPD gave Vedder a copy of materials it had produced for Rachner, Early in 2012, both parties moved for summary judgment. Judge Rogers found that SPD properly denied Vedder's request for police officer's log sheets and for the videos themselves. However, he found SPD had improperly rejected Vedder's request for the list of videos. The court initially levied a “$25.00 a day fine from the day Mr. Rachner received his first batch of COBAN files to the day Ms. Vedder received her COBAN files,” plus fees and costs. CP at 540.²

¶ 10 We granted direct review. SPD is supported on review by the Washington State Association of Municipal Attorneys and the Washington Association of Sheriffs and Police Chiefs. KOMO is supported on review by the Washington Association of Criminal Defense Lawyers, the Washington Defender Association and the Defender Association, and the News Media Entities and Washington Coalition for Open Government.

Analysis

¶ 11 “The PRA mandates broad public disclosure.” Sargent v. Seattle Police Dep't, 179 Wash.2d 376, 385, 314 P.3d 1093 (2013) (citing RCW 42.56.030); Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978). It declares that “[t]he people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” RCW 42.56.030. The PRA is “liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.” Id. To that end, State and local agencies are required to disclose their records upon request, unless the record falls within an exception. Gendler v. Batiste, 174 Wash.2d 244, 251, 274 P.3d 346 (2012) (citing RCW 42.56.070(1)). The agency refusing to release records bears the burden of showing secrecy is lawful. Sargent, 179 Wash.2d at 385–86, 314 P.3d 1093 (citing Newman v. King County, 133 Wash.2d 565, 571, 947 P.2d 712 (1997)). The PRA does not, however, require agencies to “ ‘create or produce a record that is nonexistent.’ ” Gendler, 174 Wash.2d at 252, 274 P.3d 346 (quoting Sperr v. City of Spokane, 123 Wash.App. 132, 136–37, 96 P.3d 1012 (2004)).

¶ 12 Agencies must make a sincere and adequate search for records. RCW 42.56.100; Neighborhood Alliance of Spokane County v. Spokane County, 172 Wash.2d 702, 720, 723, 261 P.3d 119 (2011). When an agency denies a public records request on the grounds that no responsive records exist, its response should show at least some evidence that it sincerely attempted to be helpful. See, e.g., Neighborhood Alliance, 172 Wash.2d at 722, 261 P.3d 119.

¶ 13 Our review of both the agency action and the court opinions below is de novo. Gendler, 174 Wash.2d at 251, 274 P.3d 346 (c...