Divided Court Examines Exemption for Law Enforcement Investigative Reports

Posted on April 13, 2010 by Steve DiJulio

David Koenig, a regular plaintiff in Public Records Act cases, sought certain records from Thurston County. The records were a Victim Impact Statement and a Special Sex Offender Sentencing Alternative (SSOSA) evaluation. The documents are used in evaluation and sentencing of sex offenders.

The trial court ordered the documents sealed. But Koenig’s request had been sent to the Prosecutor’s Office, and not to the court. The Prosecutor’s Office denied disclosure under RCW 42.56.240(1), which exempts from public inspection and copying,

“specific investigative records compiled by investigative, law enforcement, and penology agencies….the non-disclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy."

The Washington Court of Appeals ruled, on April 6, 2010, in a divided opinion that Victim Impact Statements are exempt under the PRA. But, the court held that SSOSA evaluations must be disclosed after redaction of any identifying information regarding the victim and certain other third parties. Notwithstanding the difficulty in determining the exemption from disclosure of these particular public records, the court determined that it had no discretion regarding the award of penalties to Koenig under RCW 42.56.550(4). The matter was remanded to the trial court to set the amount of penalties that Koenig may receive.

To view the court's decision, click HERE.
 

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WA Supreme Court Reaffirms that Public Records Act Does Not Apply to the Judiciary

Posted on October 23, 2009 by Rosa Fruehling-Watson

Over 20 years ago, the Washington State Supreme Court held in Nast v. Michels, 107 Wn.2d 300 (1986 ) that the State's Public Records Act (PRA) does not apply to court case files because the judiciary is not included in the PRA’s definition of a State “agency.” On October 15, 2009 , the Supreme Court reaffirmed its Nast holding in City of Federal Way v. Koenig, 2009 WL 3298055. 

The Koenig case began in February 2008.  David Koenig, a regular claimant against Washington local governments, requested from the Federal Way Municipal Court all public records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl .  His request  included  correspondence to and from Presiding Judge Michael Morgan. The City of Federal Way provided 183 pages of documents .  But, citing Nast, the City refused to provide the requested correspondence on the basis that the municipal court was not subject to the PRA.  Koenig argued that Nast was wrongly decided and persisted in pursuing his requests. 

The City filed a lawsuit and requested a declaratory ruling that the municipal court was not subject to the PRA.  In September 2008 the trial court entered an order finding for the City.  Koenig appealed that decision directly to the Washington State Supreme Court.

The  Supreme Court affirmed the Nast holding.  The Court emphasized that over the years the legislature had amended the PRA many times, without changing the definition of agency.  Without a legislative change, the doctrine of stare decisis (to adhere to precedent) was applied  by the Court to not disturb the Nast court's holding that the PRA does not apply to the judiciary.  As a result, the Court held that the court records requested by Koenig were not subject to disclosure by the City of Federal Way under the PRA. 

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