Sargent v. Seattle Police Dep't
| Citation | 260 P.3d 1006 |
| Decision Date | 19 September 2011 |
| Docket Number | No. 65896–4–I.,65896–4–I. |
| Parties | Evan SARGENT, Respondent/Cross Appellant,v.SEATTLE POLICE DEPARTMENT, Appellant/Cross Respondent. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Gary T. Smith, Seattle City Attorney, Seattle, WA, for Appellant.Greg Overstreet, Allied Law Group, Olympia, WA, Patrick Preston, Thomas M. Brennan, McKay Chadwell, PLLC, Seattle, WA, for Respondent.Ramsey E. Ramerman, City of Everett, Everett, WA, for Amicus Curiae Association of Municipal Attorneys.ELLINGTON, J.
¶ 1 This case is brought under the Public Records Act (PRA), chapter 42.56 RCW. The chief issue is whether a request for public records has indefinite effect, such that after an agency has responded to a request, it must monitor the status of all records within the request and disclose any that later become subject to disclosure. We must also decide whether the categorical exemption for records of an open and active law enforcement investigation terminated at the point of the last witness interview; whether the open and active investigation exemption applies to internal police disciplinary records; whether certain redactions to the disclosures made here were justified; and what penalties and fees are appropriate.
¶ 2 We hold that there is no standing request under the PRA. We also hold the statutory exemption for records of an open and active law enforcement investigation does not end with the final witness interview; the open and active exemption applies to police disciplinary investigation records; certain redactions from the records were not justified; the statutory maximum penalty is not appropriate where there is no showing of gross negligence, bad faith, or other improper conduct; and Sargent's fees were improperly limited.
¶ 3 We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
BACKGROUND
¶ 4 On July 28, 2009, Evan Sargent had an altercation with off-duty Seattle Police Department (SPD) Officer Donald Waters. Sargent was arrested for assault and released pending charges.
¶ 5 On July 30, Detective Nathan Janes submitted the case to the King County Prosecuting Attorney's Office (KCPA) for rush filing. KCPA declined to proceed and returned the case for further investigation.
¶ 6 On August 31 and September 1, 2009, Sargent filed requests under the PRA seeking documents related to the incident. In letters dated September 4 and 9, SPD denied Sargent's requests on grounds that under RCW 42.56.240(1), the requested documents were exempt from disclosure as records of an open and active law enforcement investigation. SPD suggested Sargent resubmit his request in six to eight weeks.
¶ 7 Sargent challenged the denial. In response, SPD provided the name and badge number of Officer Waters but otherwise continued to deny Sargent's request. Sargent did not file suit.
¶ 8 On October 22, 2009, Sargent submitted a complaint to SPD's Office of Professional Accountability (OPA), which began a disciplinary investigation of Officer Waters.
¶ 9 Meanwhile, Detective Janes continued to Investigate the allegations against Sargent. Janes conducted his last witness interview on October 23, 2009. On either November 17, 2009 or January 13, 2010 (the record is unclear), Janes referred the case to the Seattle city attorney for prosecution. On January 20, 2010, the city attorney declined to file charges. SPD notified Sargent of this determination.
¶ 10 On February 5, 2009, Sargent resubmitted and clarified his requests for information about the July incident, seeking (1) the investigative file, including the incident report and all references or related witness statements or other investigation documentation or materials; (2) all associated 911 tapes; (3) the associated computer aided dispatch system (CAD) log. Additionally, Sargent requested (4) all written or recorded communications (including electronic) by or concerning Officer Waters or Detective Janes regarding Sargent or the investigation of the July 28, 2009 incident; and (5) all information regarding any disciplinary investigation of Officer Waters and/or other personnel arising from the investigation of the July 28, 2009 incident.
¶ 11 On March 10, SPD provided the 911 tapes. It also provided the investigative file and CAD log, both with names of witnesses redacted for their safety (citing RCW 42.56.240(2)). SPD withheld the disciplinary file under the open and active investigation exemption and suggested Sargent resubmit his request in four to six weeks, and stated it needed additional time to do research before responding to his request for all written communications regarding the event or the investigation thereof. On April 5, SPD provided written communications and additional documents from the investigative file, but redacted jail records (citing RCW 70.48.100),1 the names of the witnesses and alleged victim, and documents containing Sargent's social security number and vehicle identification information on grounds that nondisclosure was essential to effective law enforcement or for the protection of privacy or safety (citing RCW 42.56.230, .240(1), (2)).
¶ 12 On April 30, 2010, OPA determined that Sargent's complaint against Waters was not sustained. OPA informed Sargent the investigation was closed. Sargent did not submit a new request for the records.
¶ 13 Sargent filed a complaint in King County Superior Court alleging violation of the PRA. After a show cause hearing, the court ruled that SPD violated the act in numerous ways. The court found that the case file documents sent to KCPA in July for rush filing were not exempt thereafter and should have been provided in response to Sargent's first request; that Sargent's first request “continued to be pending and was broadened;” that the active investigation ceased October 23, 2009 at the time of the last witness interview; and that SPD was “not acting in good faith” from that date to the date of the show cause hearing.2 The court ordered production of unredacted copies of all requested records except the internal disciplinary investigation files, and assessed penalties in the statutory minimum amount of $5 per day from the date of Sargent's initial request until Detective Janes' last witness interview on October 23, and thereafter at the statutory maximum of $100 per day until the date of the show cause hearing. The court awarded attorney fees to Sargent through the hearing date.
DISCUSSION
¶ 14 The PRA is a broad mandate for access to records that reveal the workings of government. Generally, public records are available for inspection and copying by anyone who wants to see them for any reason.3 Some records, however, are exempt from disclosure. This case involves the exemptions that apply to law enforcement files. The overriding question, however, is whether a records request has continuing effect after the agency has responded.
¶ 15 The PRA is liberally construed, and its exemptions are narrowly construed.4 The burden of proof that an exemption applies is on the agency.5 Our review is de novo.6
Standing PRA Requests
¶ 16 The controlling issue is whether a request for public records remains indefinitely “standing,” such that even after an agency has properly responded, the agency must search out and disclose additional records if the basis for a claimed exemption ceases to apply.
¶ 17 Sargent contends his first requests on August 31 and September 1 remained pending throughout. The trial court agreed. In its oral decision, the trial court discussed “whose burden it is to renew a public records request”:
It's not the burden of the person asking for a disclosure to continue to request disclosure at frequent intervals. Once a person has asked that specific items be turned over to them, then it's the City's burden to determine when, if ever, it can do that.7
¶ 18 The statute, however, does not say that. The purpose of the PRA is to provide full public access to existing, nonexempt records.8 The legislature requires agencies of government to respond to requests in a timely and clear fashion. But it does not require that agencies provide updates to previous responses, or monitor whether documents properly withheld as exempt may later become subject to disclosure.9
¶ 19 As the Washington State Bar Association's Public Records Act Deskbook comment states, “The Public Records Act does not provide for ‘continuing’ or ‘standing’ requests.” 10 Instead, the comment suggests “refresher” requests. The deskbook comment is aimed primarily at newly created documents, but for this purpose, newly created documents are indistinguishable from newly nonexempt documents. The Washington State Attorney General's model rules are in accord: “An agency is not obligated to supplement responses.” 11
¶ 20 This is a sensible, bright-line rule. Agencies are required to respond to requests in a timely fashion by disclosing all nonexempt documents. Nothing in the language or history of the statute indicates the legislature intended to impose on agencies an endless monitoring of old requests, or to require updated responses indefinitely to people who may have long since lost interest.
¶ 21 Further, the statute requires that public records be made available for “inspection and copying.” 12 A requestor may elect merely to inspect the records rather than bear the cost of copies.13 Once inspection has occurred, a request can hardly be considered standing. Just as with a nonexistent record, an exempt record is not available for inspection and cannot be copied. The approach of the trial court treats requests for inspection differently from requests for copies. The statute does not do so.
¶ 22 SPD responded to each of Sargent's requests as it came in. Sargent was able to appeal those responses. When the status of the records changed, he was notified and had the opportunity to refresh his request. He did so, at least for the investigation file, and the records were, with minor exceptions,...
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