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The New Mexico Supreme Court recently upheld public access to formal citizen complaints filed against police officers.

In late June, the Court denied a request for review of a lower court ruling.  That decision left in place a 2010 appellate court decision which held that formal citizen complaints against police officers were public records and could be released under New Mexico's Inspection of Public Records Act (“IPRA”).  Cox v. New Mexico Dept. of Public Safety, 148 N.M. 934, 242 P.3d 501 (N.M. App. 2010). The New Mexico Department of Public Safety sought to withhold the records, claiming that the citizen complaints fell under an IPRA exemption for "matters of opinion in personnel files" because the records relate to an officer’s job performance.  However, the New Mexico Court of Appeals found the exemption inapplicable, finding that citizen complaints necessarily arise from an officer's role as a public servant, not the employment relationship with a public agency.  The appellate court noted that internal investigation reports and employer opinions generated as a result of citizen complaints remain exempt under as “matters of opinion in personnel files.”  However, the complaints themselves cannot be withheld.  242 P.3d at 507-08.  The court commented that though the Department of Public Safety “is the keeper of the information contained in the citizen complaints, the information continues to belong to the citizen who made the complaint.”  Id. at 507. Even if the allegations or complaints are untrue, it is not a basis for withholding information from the public.  Id.

A similar debate is ongoing in Seattle, as noted in our earlier blog post.  The Seattle City Attorney’s office recently appealed an arbitration decision that ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct. Washington’s Public Records Act provides a strongly worded mandate for broad disclosure of public records. Exemptions are narrowly construed.  See Yakima v. Yakima Herald Republic, 170 Wn.2d 755, 791, 246 P.3d 768 (2011).  The City of Seattle argued that the arbitrator’s decision violates the PRA, as there is no applicable exemption that would allow withholding the names.  The Seattle Police Guild argued that the “law-enforcement” exemption applies which prevents law enforcement or investigative records from public inspection and copying.  See RCW 4.56.240.  The case is currently pending in King County Superior Court.

“Name release” disputes arise regularly in many contexts, particularly education.  In a 2008 Washington case, Bellevue John Does 1-11 v. Bellevue School District 405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of public school teachers accused of sexual misconduct may be disclosed to the public when the misconduct is substantiated or the teachers’ conduct resulted in some form of discipline, even if only a reprimand.  164 Wn.2d. at 205.  In contrast, the names of teachers who are the subject of unsubstantiated allegations are exempt from disclosure under the PRA.  Id. at 212.
 

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In February, thousands of protestors, including many teachers, attended rallies in Wisconsin’s capitol to protest Governor Scott Walker’s proposed limits on collective bargaining for public workers.  As a result, schools were closed for a day or more in many districts.  Now conservative groups have filed public records requests asking school districts across the state to release the names of teachers who “called in sick” during the protests.

Many districts have complied, but the Madison School District (“District”), which had four days of closures in February, has denied several public records requests.  As reported by the Wisconsin State Journal, the District is concerned that the release of the teachers’ names could “risk the safety of teachers and students, and disrupt morale and the learning environment in schools.”  The requesting groups deny that the information will be used to harm or harass teachers.  However, the District’s counsel believes otherwise, citing “a number of threats” made against board members, administrators and district employees as a result of teachers’ participation in the protests.

Some districts have successfully prevented disclosure of teachers’ names. The Wisconsin Education Association Council argued on behalf of the La Crosse and Holmen School Districts that safety risks outweighed the benefits of disclosure, obtaining an injunction from a La Crosse Circuit Court Judge.

Wisconsin’s Public Records laws do not include a disclosure exemption for general safety concerns. There is an exemption for specific employee records, including “personally identifiable information” such as addresses, phone numbers and social security numbers. Sec. 19.36(1) of the 2003 Wisconsin Act 47.  However, the requestors in this case seek only names, not identifying information.

When there is no established exemption (by statute or common law) and a public records custodian has doubts or concerns about whether to release records, Wisconsin courts perform a balancing test. Sec. 19.35(1)(a).  Records may be withheld only if the public interest in nondisclosure outweighs the public interest in disclosure, as there is a strong presumption of access.  See Matter of Estates v. Zimmer, 151 Wis. 2d 122 (Wis. Ct. App. 1989).

It remains to be seen how the court will balance the competing interests in this case, and whether the District’s safety argument will outweigh the presumption of disclosure that is central to the Wisconsin Public Records Act.

Washington’s Public Records Act is similar, in that there is no blanket exemption for safety or privacy. To prevent disclosure out of concerns for privacy or safety, an agency must prove that disclosure of the information 1) would be highly offensive to a reasonable person, and 2) is not of legitimate concern to the public.  RCW 42.56.050.  Specific personal identifying data is, of course, exempt from disclosure. RCW 42.56.210.  However, names must generally be disclosed.  See John Doe No. 1 v. Reed, __ U.S. ___, 130 S. Ct. 2811, 177 L.Ed.2d 493 (2011) (finding that Washington’s public records act authorized the release of the names of voters who signed referendum petitions); King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002) (holding that public records act does not exempt from disclosure the full names and ranks of county police officers).

An article in the May 26, 2011 Seattle Times highlights a recent Seattle “name release” case.  A labor arbitrator, acting at the request of the Seattle Police Officers’ Guild, just ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct.  It is reported that the city attorneys plan to appeal, believing the decision is in conflict with Washington law.
 

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