West v. Port Olympia

• Decision Date: 26 August 2014
• Docket Number: No. 44964–1–II.,44964–1–II.
• Citation: 333 P.3d 488
• Parties: Arthur WEST, Appellant, v. PORT OF OLYMPIA, Respondent.
• Court: Washington Court of Appeals

333 P.3d 488

Arthur WEST, Appellant,

v.PORT OF OLYMPIA, Respondent.

No. 44964–1–II.

Court of Appeals of Washington, Division 2.

Aug. 26, 2014.

Arthur West, (Appearing Pro Se), Olympia, WA, for Appellant.

Carolyn A. Lake, Goodstein Law Group PLLC, Tacoma, WA, Seth S. Goodstein, Goodstein Law Group PLLC, Tacoma, WA, for Respondent.

MAXA, J.

¶ 1 Arthur West appeals the trial court's dismissal of his Public Records Act (PRA) claim against the Port of Olympia. West's claim is based on the Port's redactions of a Port employee's name, job title, job duties, and other identifying details from an investigative report relating to unsubstantiated allegations of governmental misconduct made against that employee. The Port made the redactions under the exemption in former RCW 42.56.230(2) for personal information that would violate an employee's right to privacy.

¶ 2 We assume without deciding that the employee's identity constituted personal information and that the employee had a privacy right in his or her identity in connection with the allegations. However, we hold that the Port's redactions violated the PRA because disclosure of the identifying information would not be highly offensive to a reasonable person and therefore would not violate the employee's right to privacy. Accordingly, we reverse the trial court's dismissal of West's PRA claim. In addition, we award attorney fees to West on appeal and remand to the trial court to award West his attorney fees and costs below and to determine whether a statutory penalty is proper.

FACTS

¶ 3 In 2012, West submitted a PRA request to the Port seeking, among other items, records relating to the Port's investigation of a whistleblower complaint made by a former Port employee. The complaint alleged that a Port employee “undertook improper governmental action.” Clerk's Papers (CP) at 17. The Port's initial inquiry into the complaint resulted in other employees raising additional allegations about that employee. The Port's attorney conducted an investigation and prepared a report. Specifically, the investigation report addressed whether the employee accused in the complaint had derived personal gain from Port activities. The investigation report also addressed whether the employee exceeded his or her scope of authority and failed to follow established accounting procedures, disposed of environmentally sensitive materials improperly, and violated Port policies regarding work on holidays. The Port's attorney apparently concluded that the complaints were unsubstantiated.

¶ 4 The Port responded to West's PRA request by producing the requested records, including the investigative report. But the Port redacted all information that would identify the accused employee—the employee's name, gender pronouns related to the employee, the employee's job title, details regarding the employee's job duties, and details regarding the alleged improper governmental action. The Port claimed that information regarding the Port employee's identity was exempt from disclosure under former RCW 42.56.230(2) because such disclosure would constitute an invasion of privacy under RCW 42.56.050.

¶ 5 West filed a complaint in superior court under the PRA, claiming that the Port had made unlawfully excessive redactions to the investigative report. The trial court dismissed West's PRA claim, ruling that the Port's redactions were proper based on the privacy exemption in former RCW 42.56.230(2) and under case law holding that unsubstantiated allegations against a public employee are exempt from disclosure. West appeals.

ANALYSIS

A. Interpretation of PRA

¶ 6 The PRA requires every government agency to disclose any public record upon request. RCW 42.56.070(1); Sanders v. State, 169 Wash.2d 827, 836, 240 P.3d 120 (2010). However, an agency may lawfully withhold production of records if one of the PRA's enumerated exemptions applies. RCW 42.56.070(1); Sanders, 169 Wash.2d at 836, 240 P.3d 120. The agency bears the burden of establishing that an exemption to production applies under the PRA. RCW 42.56.550(1).

¶ 7 The PRA is a “ ‘strongly worded mandate for broad disclosure of public records.’ ” Yakima County v. Yakima Herald–Republic, 170 Wash.2d 775, 791, 246 P.3d 768 (2011) (quoting Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978)). Therefore, we must liberally construe the PRA in favor of disclosure and narrowly construe its exemptions to assure that the public interest in full disclosure of public information will be protected. RCW 42.56.030. When evaluating a PRA claim, we also must “take into account the policy ... that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others.” RCW 42.56.550(3).

¶ 8 We review agency action taken or challenged under the PRA de novo. RCW 42.56.550(3); Resident Action Council v. Seattle Hous. Auth., 177 Wash.2d 417, 428, 300 P.3d 376, amended on denial of recons., ––– Wash.2d ––––, 327 P.3d 600 (2013). In reviewing a PRA request, we stand in the same position as the trial court. Lindeman v. Kelso Sch. Dist. No. 458, 162 Wash.2d 196, 200, 172 P.3d 329 (2007). Therefore, where (as here) the record consists of only affidavits, memoranda of law, and other documentary evidence, we are not bound by the superior court's factual findings. DeLong v. Parmelee, 157 Wash.App. 119, 143, 236 P.3d 936 (2010), modified on remand,164 Wash.App. 781, 267 P.3d 410 (2011), review denied,173 Wash.2d 1027, 273 P.3d 982 (2012).

B. Accused Employee's Right to Privacy

¶ 9 Under former RCW 42.56.230(2) (2011),¹ “[p]ersonal information in files maintained for employees, appointees, or elected officials of any public agency” are exempt from public inspection and copying “to the extent that disclosure would violate their right to privacy.” To determine whether the personal information exemption applies we address whether (1) the employee's identity constitutes personal information, (2) the employee has a right to privacy in his or her identity in connection with the unsubstantiated allegations, and (3) disclosure of the employee's identity in connection with the unsubstantiated allegations would violate that right. See Bainbridge Island Police Guild v. City of Puyallup, 172 Wash.2d 398, 411, 259 P.3d 190 (2011). RCW 42.56.050 provides that a person's right to privacy is violated only when disclosure of information “(1) [w]ould be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.”

¶ 10 Here, we assume without deciding that the employee's identity constituted personal information and that the employee had a privacy right in his or her identity in connection with the unsubstantiated allegations of misconduct. See Bellevue John Does 1–11 v. Bellevue Sch. Dist. No. 405, 164 Wash.2d 199, 211–16, 189 P.3d 139 (2008). However, we hold that disclosure of the identifying information would not violate the employee's right to privacy because disclosure of the unsubstantiated allegations of misconduct would not be highly offensive to a reasonable person.

1. Meaning of “Highly Offensive”

¶ 11 The PRA does not provide a definition of “highly offensive” in RCW 42.56.050. But RCW 42.56.550(3) emphasizes that the PRA's policy is that “free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others.” Reading these statutes together suggests that the legislature intended the term “highly offensive” to mean something more than embarrassing.

¶ 12 Our Supreme Court also has not discussed the meaning of “highly offensive” in any detail. In Bellevue John Does, the court stated that it was “undisputed that disclosure of the identity of a teacher accused of sexual misconduct is highly offensive to a reasonable person.” 164 Wash.2d at 216, 189 P.3d 139. And in Bainbridge Island Police Guild, the court stated that for the purposes of determining whether disclosure would be highly offensive, there is no reason to distinguish between a police officer accused of sexual misconduct and a teacher accused of sexual misconduct. 172 Wash.2d at 415, 259 P.3d 190. The only clarification the court provided in these two cases is that whether disclosure of allegations of unsubstantiated sexual misconduct would be highly offensive did not turn on whether the allegations were substantiated or unsubstantiated. Bellevue John Does, 164 Wash.2d at 216 n. 18, 189 P.3d 139. Instead, the court stated that “[t]he offensiveness of disclosure is implicit in the nature of an allegation of sexual misconduct.” 164 Wash.2d at 216 n. 18, 189 P.3d 139; see also Bainbridge Island Police Guild, 172 Wash.2d at 415, 259 P.3d 190.

¶ 13 In an earlier case, Dawson v. Daly, 120 Wash.2d 782, 845 P.2d 995 (1993), overruled on other grounds by Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.2d 243, 884 P.2d 592 (1994), our Supreme Court held that disclosure of an employee's performance evaluations that do not discuss specific instances of misconduct is presumed to be highly offensive. The court noted the well known “sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence.” 120 Wash.2d at 797, 845 P.2d 995.

¶ 14 And in Predisik v. Spokane Sch. Dist. No. 81, 179 Wash.App. 513, 319 P.3d 801, review granted,180 Wash.2d 1021, 328 P.3d 903 (2014), Division Three of this court held that disclosure of teachers' identities in connection with unsubstantiated allegations of unspecified misconduct could be highly offensive. 179 Wash.App. at 519–20, 319 P.3d 801. The court stated that although the allegations in Bellevue John Does involved unsubstantiated allegations of sexual misconduct, “disclosure of unsubstantiated allegations of other types of misconduct can be offensive because it also subjects the teacher to gossip and...