In 2010, Michael Mockovak was found guilty of soliciting and attempting to murder his business partner, among other charges. While incarcerated, Mockovak filed suit under the Washington Public Records Act, chapter 42.56 RCW (“PRA”), against King County and the King County Prosecuting Attorney’s Office, seeking all documents referring to the immigration status of an informant, Kultin, who helped secure Mockovak’s conviction. Although records were disclosed, many were heavily redacted to protect attorney work product. The agencies also withheld Kultin’s National Crime Information Center (“NCIC”) Report, arguing they were barred from disclosing it by federal statute. In affirming the trial court’s decision in favor of the agencies, the Washington Court of Appeals addressed a number of discovery and PRA issues. Mockovak v. King County, No. 74459-3-I (Dec. 19, 2016).
The PRA Does Not Override Federal Touhy Regulations. Mockovak’s convictions arose out of a joint federal-state investigation conducted by the Puget Sound Safe Streets Violent Crimes Task Force. The task force included both federal and state law enforcement officers specially appointed to federal positions. Mockovak argued that certain task force documents became subject to the PRA when task force member Carver (also a Seattle Police Department detective) “used” the documents, citing the Washington Supreme Court decision in Concerned Ratepayers Association v. Public Utility District No. 1 of Clark County, 138 Wn.2d 950, 983 P.2d 635 (1999). While the appellate court agreed the task force documents likely qualified as public records under the PRA, that alone did not require disclosure. Because the documents were created by and belonged to a federal agency, the PRA did not permit a Washington state agency to release them in contravention of the federal agency’s regulations. Federal agencies are statutorily authorized to adopt regulations – known as Touhy regulations – governing agency administration, including use and disclosure of records. See 5 U.S.C. § 301.
Public Records Disputes Are Not a Forum to Raise Brady Claims. Mockovak also argued that he was constitutionally entitled to the requested records under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), which requires the prosecution to turn over material exculpatory evidence to the defense. The Court rejected this argument, citing numerous federal decisions holding that Brady claims are proper only in connection with a criminal proceeding, not a suit for the disclosure of public records. The Court noted that “[t]his is not to say that the PRA trumps or otherwise limits what Brady allows. It simply means that the issue must be litigated in the proper forum.”
Records Were Protected Work Product. The Court also rejected a number of work product arguments raised by Mockovak. First, King County and the Prosecuting Attorney’s Office’s communications with the U.S. Attorney’s Office were protected as work product under the “common interest” rule, even if there were some “tensions” between the offices regarding the details of Mockovak’s prosecution. Such tensions did not preclude the agencies from sharing common investigative and prosecutorial interests. Further, disclosure of certain documents to “friendly witness” Kultin did not result in a waiver, as he participated in both the prosecution and investigation and shared a common interest in having Mockovak prosecuted. The Court also held that documents prepared by the U.S. Attorney’s Office were “prepared in anticipation of litigation” – to prosecute Mockovak – even though the U.S. Attorney ultimately agreed that the State should handle the prosecution. The documents constituted “opinion work product” that was “absolutely immune from disclosure” and, even if regular work product, Mockovak did not demonstrate a substantial need for the documents.
Partial Disclosure of Information Contained in NCIC Report Did Not Waive Federal Exemption. Mockovak’s final argument was that the NCIC Report was improperly withheld because the agencies waived any protection of the report when Carver summarized information he learned from the report in his declaration testimony. The PRA allows agencies to not disclose records when “[an]other statute . . . exempts or prohibits disclosure.” RCW 42.56.070(1). Here, the agencies relied on 28 U.S.C. § 534, governing exchange of criminal identification records between agencies. In rejecting Mockovak’s waiver argument, the Court observed that “a federal statutory bar on disclosure cannot be waived.” Moreover, general discussions of topics or partial disclosures of information contained in a document do not waive an otherwise valid exemption over the document itself. Carver’s references to arrest and criminal history information contained in the NCIC Report were “limited, general, and cursory” and did not waive the protections of the PRA’s “other statute” exemption and 28 U.S.C. § 534.