The case was brought by a citizen who alleged that a police officer sexually and physically assaulted her during the course of a traffic stop. Investigations were conducted by the cities of Puyallup (criminal) and Mercer Island (internal investigation).  Each investigation found the claims to be unsubstantiated.  The case garnered media attention, and several journalists and news organizations, in addition to the complainant herself, made public records requests for the investigative reports.  The cities of Puyallup and Mercer Island informed the requestors that the documents would be produced absent an injunction, which the Police Guild and the implicated officer sought (though not before at least one of the reports had been released and information published by some media sources).

Subsequent records requests and demands for injunctions led to in camera review of the documents by a Kitsap County Superior Court judge, who determined that the reports should be withheld under the investigative report exception to the PRA, RCW 42.56.240(1).  Injunctions were also sought against requestors in Pierce County Superior Court.  That court determined that the Puyallup report could be withheld from disclosure under the personal information exemption to the PRA, former RCW 42.56.230(2) and privacy concerns under RCW 42.56.050.  Injunctions enjoining disclosure of the reports were granted in King County Superior Court on the same grounds.

The Supreme Court accepted direct review.  The lead opinion (4 justices) overturned the King and Pierce County decisions, which had determined that the reports could be withheld in their entirety based on privacy concerns under the PRA’s personal information exemption.  Personal information is not defined in the PRA, but has been defined by the Supreme Court as “information relating to or affecting a particular individual, information associated with private concerns or information that is public and not general.”  Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 211, 189 P.3d 139 (2008).  The Court rejected the trial courts’ determination that the reports should be withheld in their entirety, and instead instructed the agencies to produce the records, but redact identifying information (i.e. the officer’s name, social security number or other identifying data) in order to protect personal privacy interests.  The Court compared the unsubstantiated allegations against police officers with the Bellevue John Does case, where the Court found the names of public school teachers who are the subject of unsubstantiated allegations of sexual misconduct are exempt from disclosure, but the underlying investigative reports (with names redacted) were subject to release.  The Court also addressed the investigative records exemption to the PRA, RCW 42.56.240(1) (raised in the Kitsap County Superior Court case), and found it inapplicable, as the records are not essential to effective law enforcement.  Disclosure of the records (without identifying information) was justified by the public’s “legitimate interest” in knowing how the allegations of misconduct were investigated. Opinion at 18-22; see also RCW 42.56.050.

In contrast, the concurrence/dissent (4 justices) asserted that the entire record should be released, including the officer’s name.  Justice Madsen wrote that an officer’s name does not need to be redacted in an investigation or complaint against a police officer for sexual misconduct, because such allegations “in no way involve the details of one’s personal and private life.” Concurrence/dissent at 1.  “Public records relating to alleged misconduct of public servants and who government agents investigate such allegations are quintessential examples of the kind of information that the PRA opens to scrutiny.  The public has the right to know… .” Concurrence/dissent at 2.  That opinion would hold that the exemptions raised by the Police Guild and the officer did not justify nondisclosure.

Finally, Justice Johnson wrote a lone dissent finding that the two investigative reports “fit squarely” within the PRA exemption for investigative records, thus should not be disclosed at all. He found the lead opinion to be inconsistent with Bellevue John Does.

The practical result of these decisions is that disclosure outweighs privacy concerns in the arena of public employees’ misconduct. Investigative records detailing claims of misconduct must be released and available to the public. This will likely apply across the board to all public sector employees, and will not be limited solely to law enforcement or education. Even if allegations are unsubstantiated, the record must be released, though with redaction of names or personal identifying information.

Click here for a recent Seattle Times article on the decision.

In Milner v. Department of the Navy, the Navy argued that release of the maps would threaten public safety; the maps depict distances where damage could result from hypothetical explosions in buildings where weapons, ammunition and explosives are stored. But as reported by the Kitsap Sun, public safety is the very reason the maps were requested by local activist Glen Milner, who wanted information about whether his community might be endangered by the ammunition supply.

The crux of the case was whether Exemption 2 can be used to block the release of the type of documents in question. According to some of the amici curiae briefs before the Court (primarily news organizations and the ACLU), Exemption 2 had, over the years, become a catchall exemption for the government. “High 2” (as the exemption had become known) had expanded beyond its plain language through administrative interpretations and lower court rulings, allowing the government to withhold documents that were not clearly connected to an agency’s personnel rules or internal practices. Instead, based on a 1981 D.C. Circuit Court opinion, the “High 2” exemption had come to shield any internal documents whose release might risk circumvention of agency functions.

The Supreme Court held in favor of disclosure, finding that the maps were not “personnel rules or practices” under the plain language of Exemption 2, thus rejecting the 30-year old D.C. Circuit interpretation. Writing for the Court, Justice Kagan stated that the past tolerance of the expansive “High 2” reading of the statute  “pos[ed] the risk that FOIA would become less a disclosure than a ‘withholding statute’”. In a lone dissent, Justice Breyer stated that he would “let sleeping dogs lie”, noting that the courts have supported the broad use of Exemption 2 for the past 30 years.

The Court also noted that the Navy could rely on other FOIA exemptions to limit disclosure of the maps, such as the national security exemption (Exemption 1) or the law enforcement exemption (Exemption 7(f)) which allows an agency to withhold records that "could reasonably be expected to endanger the life or physical safety of any individual." But these issues were not decided by the District Court.

This case is likely to have a substantial impact on disclosure requests by prohibiting all agencies’ continued use of the “High 2” exemption to support expansive refusals to disclose  records. The Supreme Court has reminded us that exemptions to FOIA are narrowly construed, and all government agencies should think carefully about the narrow applicability of exemptions when asked for public records.

The employee, Phillips, who worked at a 911 call distribution center, had complained about his supervisor, triggering agency investigations. Phillips was terminated, after a psychiatric evaluation concluded he was not fit for duty.

In response to his request for documents, Phillips received copies of his personnel and medical files and a copy of the psychiatrist’s report. However he was not given the agency’s complete investigative file, much of which the agency contended was exempt from the Washington Public Records Act (“PRA”) under attorney-client and work product privileges.  Phillips then brought suit in superior court challenging the agency’s compliance with the PRA. Following in camera review, the trial court issued several orders, none of which were appealed by the employee. Meanwhile, during this initial proceeding, Phillips continued to make repeated records requests to the agency for the very same documents, as well as “clarifications” of the agency’s earlier responses. 

Several months later, Phillips brought a second suit claiming that the agency failed to comply with the PRA.  The agency moved for injunctive relief. This time, the trial court denied Phillips’ requests, holding that they were bared by res judicata, collateral estoppel and the statute of limitations, since Philips had never appealed the final order from the first superior court proceeding.  The trial court also awarded CR 11 sanctions against Phillips for his frivolous and repeated PRA requests.  But, the court denied the agency’s request for an injunction under RCW 42.56.540 (enjoining examination of public records if such examination would not be in the public interest or would substantially and irreparably damage a person or vital government function). The Court of Appeals upheld the trial court’s rulings.

This decision highlights the issues courts face when balancing the open-government goals of the PRA with the reality of abusive and/or frivolous requestors.  In the employment context, a PRA request can sometimes serve as an easy way for a disgruntled public employee to burden a former employer.  However, CR 11 sanctions are not commonly imposed on requestors. While the Philips opinion provides limited analysis on this topic, the employee’s repeated and unsupported requests for the same information appear to be the root cause of the Court’s hard-line response. However, the Court also denied the agency’s request for injunctive relief against Phillips. The Court reminds us, once again, that exemptions to the PRA are narrowly construed; despite the inconvenience and burden imposed on an agency by a difficult requestor, the agency must still identify its reasons for withholding records and provide sufficient evidence to support its exemption claims.

Washington’s Public Records Act similarly contains exemptions for documents subject to attorney- client privilege. Washington’s general attorney-client privilege statute, RCW .60.060 (2)(a), is considered an "other statute" that provides for exemption from disclosure, as described in RCW 42.56.070 (1) of the PRA.  In addition, RCW 42.56.210 (1)(j) exempts attorney work-product involving a "controversy," i.e. completed, existing, or reasonably anticipated litigation involving the agency. See WAC 44-14-06002 (codifying the Washington State Attorney General’s Model Rules on Public Disclosure).  In general, the attorney-client privilege covers records reflecting communications made in confidence between a public official or agency employee acting in the performance of his or her duties, and an attorney serving in the capacity of legal advisor for the purpose of rendering or obtaining legal advice. The privilege also covers records prepared by the attorney in furtherance of the rendition of his or her legal advice. Id.  For example, recognizing a public interest in defending against civil liability, the Washington Supreme Court applied privilege protections to documents created by a school district’s legal team during the team’s investigation of a student’s death giving rise to potential liability. Soter v. Cowles Publ’g Co., 162 Wn.2d 716, 174 P.3d 60 (2007).

The State Patrol would only provide records if Gendler was able to identify the person involved and the collision date, while also telling Gendler that it did not maintain reports by location. Gendler found he could obtain specific records from the State Patrol’s website, but only after certifying that he would not use the records in a lawsuit against the State. In a separate action, Gendler sued the State over his injuries and that case recently settled.

The Court of Appeals agreed with the the trial court, holding that the State Patrol cannot hide behind a memorandum of understanding (“MOU”) with the State Department of Transportation (“WSDOT”) and WSDOT’s federal privilege under 23 U.S.C. §409, barring use of collision data in lawsuits. The federal privilege is intended to allow WSDOT to compile and analyze accident data to better implement highway safety measures funded by the federal government without concern that such analysis would be used to support lawsuits against the State.

Although WSDOT has physical custody of the accident records based on the MOU, they are still State Patrol records and subject to disclosure if the State Patrol cannot show an appropriate exemption. While the State Patrol’s reports do provide information for WSDOT’s federally exempt accident tracking and analysis, WSDOT’s exemption does not bar disclosure because the State Patrol collects its accident information for other non-exempt law enforcement investigation purposes. Accordingly, the Court upheld the trial court's order requiring the State Patrol to produce the requested reports without limitation, e.g. the waiver of lawsuit rights that the State Patrol sought for Gendler to receive the requested records.

Promising confidentiality to bidders, the Heath Care Authority invited bids to acquire Authority hospitals. The Court found that the documents relating to the final sale of the hospitals, including bids and a letter of intent from the winning bidder, could be disclosed under the Alabama Open Records Act.  The Court noted that, “a private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential.  The right to examine these records is a right belonging to the public; it cannot be bargained away by a representative of the government.”  The Court then rejected the Health Care Authority’s two proposed exemptions, finding that the exemption for recorded information received by a public officer in confidence was inapplicable, as was the exemption for records which, if disclosed, would be detrimental to the best interest of the public.

Washington’s Public Records Act (“PRA”) does not have a general exemption for bid materials. And, there is no Washington case law interpreting this issue.  However, it is likely that Washington courts would come to the same conclusion as the Alabama Supreme Court.  Confidentiality is not a stand-alone exemption, and bidders cannot rely on that designation to prevent disclosure of their materials.  See WAC 44-14-06002 (codifying the Washington State Attorney General’s Model Rules on Public Disclosure).  To prevent disclosure, records must fall under a specific PRA exemption category, such as “trade secrets” (or other statutory provisions that may limit disclosure of contract proposals).  And, if portions of a record fall under one of the statutory exemption categories, an agency may still release the record with redactions.