West v. Thurston Cnty.

• Decision Date: 13 April 2023
• Docket Number: 39011-0-III
• Parties: ARTHUR WEST, Appellant, v. THURSTON COUNTY, Respondent.
• Court: Washington Court of Appeals

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ARTHUR WEST, Appellant, v. THURSTON COUNTY, Respondent.

No. 39011-0-III

Court of Appeals of Washington, Division 3

April 13, 2023

UNPUBLISHED OPINION

SIDDOWAY, J.

Arthur West appeals superior court orders denying him relief for what he contends were Thurston County's violations of the Public Records Act (PRA), chapter 42.56 RCW. We reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

In early September 2020, members of a federal task force shot and killed fugitive Michael Reinoehl at an apartment complex in Thurston County. A news release issued by the Thurston County Sheriff's Office (TCSO) the next day reported that members of the Pacific Northwest Violent Offender Taskforce led by U.S. marshals were involved in the incident, and that

[t]he team was at the location conducting surveillance on an apartment where they believed a wanted homicide suspect [Reinoehl] was located.

The wanted subject came out of the apartment and got into a vehicle to leave. During the attempt to apprehend him, shots were fired at the suspect in the vehicle and he fled from the vehicle on foot. Additional shots were fired at the suspect and he was later pronounced deceased at the location. We can confirm at this time that the suspect was armed with a handgun.

Clerk's Papers (CP) at 43. The federal task force operated in Western Washington in concert with law enforcement partners, including a Thurston County subgroup. That subgroup included TCSO deputies holding cross-commissions. The Thurston County subgroup had not been asked by the U.S. Marshals Service to assist in Mr Reinoehl's apprehension, however, and had not been involved in the shooting.

Under Washington law, an independent investigation was required where the use of deadly force by one or more peace officers had resulted in Mr. Reinoehl's death. The TCSO became the lead agency responsible for the investigation.

In October 2020, Arthur West directed the following public record request to Thurston County Public Records Officer Karen Horowitz:

RE: Public Records Request for Reinoehl Arrest and Investigation Recor Please consider this as a request for inspection or copies of records under RCW 42.56, the common law, and any administrative rules that may apply, in regard to the following records:

All records and communications concerning the investigation apprehension and killing of Michael Reinoel [sic], to include any interdepartmental communications, any police reports CAPCOM records, any radio, radiotelephone, text or other electronic communications, any emails, writings, memos directives, or other communications of any form, to include any review, investigation, or analysis of any form of the above mentioned events and related activity.

All words should be afforded their ordinary meaning as indicated by context, State Law, and Webster's Third New International Dictionary. Please feel free to contact me if any clarification or limitation in scope is necessary.

Thank you for your consideration.

CP at 29-30 (emphasis omitted).

Within five days, Ms. Horowitz acknowledged the request and denied it, explaining, "The records you have requested pertain to an active and on-going investigation .... These records are categorically exempt from production pursuant to RCW 42.56.240(1).^[1] See Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997)." CP at 30. She stated that his request for public records was considered closed, but he was free to re-request the documents at a later date.

Mr. West immediately filed suit against the County seeking declaratory relief, costs, fees, penalties, and in-camera review of withheld records. He alleged that the categorical exemption relied on by the County did not apply because the TCSO was involved in an internal investigation to which no categorical exemption applied, citing Sargent v. Seattle Police Department, 179 Wn.2d 376, 314 P.3d 1093 (2013). Mr. West contended the County was required to search for responsive records, disclose any that were not exempt, and provide him with a privilege log identifying any records it claimed were exempt. A couple of weeks after filing suit, Mr. West filed a motion for in camera review of the withheld records.

At the hearing on his motion for in camera review, Mr. West argued that the investigation being conducted was taking place under new Washington law that required an investigation of all uses of deadly force by police officers. Given the nature of the investigation, he argued that the reasoning of the Washington Supreme Court's decision dealing with internal investigations, not criminal investigations, should apply. He further stated,

I would also point out that to the extent that the rules of the Criminal Justice Training Commission apply, they require the policies and operating procedures of the IGG [sic^[2] to be available to the public, the names, members, supervisors, commanders, to be disclosed.

Then there's also supposed to be a weekly progress report made of the conduct of the investigation[,] all which would be public record.

Rep. of Proc. (RP) at 8. Characterizing his request as "broadly for all records related to any investigation," not solely for the investigative file, he argued "there's the question of whether there are other records beyond the investigative file that need[ ] to be produced." Id.

In responding, the deputy prosecutor pointed out that a declaration she had filed from TCSO Lieutenant Ray Brady characterized the investigation as a homicide investigation, adding, "This is not an internal employment or misconduct investigation in so far as Thurston County is concerned because no Thurston County officer was involved in this shooting or was even present on the evening of Mr. Reinoehl's death." RP at 9. She added that to the extent Mr. West "is now clarifying his request," and "asking for things that are disclosable under the applicable WAC [(Washington Administrative Code) regulation] . . . then we would disclose them." RP at 10. In response to a question from the court, the deputy prosecutor stated that her understanding was that Mr. West had not requested the items disclosable under the WAC, but she was willing to treat his mention of the documents in the hearing as a clarification rather than require him to make a new record request.

The trial court issued a memorandum decision shortly after the hearing in which it ruled that "[t]he sole purpose of TCSO involvement in this matter is investigative as a law enforcement agency," so the County's "reliance on RCW 42.56.240(1) is appropriate and TCSO is justified in asserting the statutory blanket exemption during the time of its ongoing investigation." CP at 32. As for the clarification during the hearing that Mr. West believed responsive documents were required to be disclosed by regulation, the court said it would "reserve its decision, pending Defendant's response to the request." CP at 32. Mr. West filed a motion to reconsider in camera review, which was denied.

The motion for in camera review had been heard on November 23, 2020, and that afternoon Ms. Horowitz e-mailed Mr. West to say she was told he had clarified his request to include "the following records":

• Policy documents and operating procedure documents from the Thurston County Sheriff's Office for the Independent Investigative Team (IIT)

• The names of the members, supervisors, commanders, and nonlaw enforcement community representatives on the IIT

• All press releases or public updates from the Thurston County Sheriff's Office related to the IIT investigation of the death of Michael Reinoehl

CP at 35. Ms. Horowitz stated she "did not previously understand you to have requested copies of these records," and asked him to inform the County by reply if he wanted it to process such a request. CP at 35. Mr. West replied that the records were covered by his original request and, "I do not believe a second request is necessary or appropriate." CP at 37.

On November 30, 2020, the County produced approximately 80 pages responsive to the three categories of records set forth in Ms. Horowitz's November 23 e-mail. In February 2021, Mr. West and the County filed cross motions for summary judgment. In support of his motion for summary judgment, Mr. West filed a declaration stating that other agencies had furnished extensive records related to the Reinoehl use of force investigation in response to virtually the same request he submitted to Thurston County.

The other agencies were Pierce County, the city of Lakewood, and the Washington State Department of Corrections (DOC). Because he had brought a PRA lawsuit against DOC for its initial nondisclosure and the trial court in that case found a PRA violation, Mr. West argued that res judicata and collateral estoppel required the trial court to rule against Thurston County.

The trial court denied Mr. West's motion for summary judgment and granted summary judgment to Thurston County. In a memorandum opinion, the trial court reiterated its view that the County justifiably invoked a categorical exemption in response to Mr. West's records request. Mr. West filed a motion to reconsider summary judgment, which was denied. Mr. West appeals.

ANALYSIS

Mr West appeals the trial court's orders denying his motion for in camera review and awarding summary judgment to the County.^[3] The history and nature of the statutorily-required use of force investigation process is viewed by Mr. West as important to the issues presented, so we begin by addressing it briefly.

I. BACKGROUND: INDEPENDENT INVESTIGATION OF USE OF DEADLY FORCE BY PEACE OFFICERS

In 2017, a coalition of Washington residents and organizations concerned about police use of deadly force in Washington formed De-Escalate...