Newman v. King County , 133 Wash. 2d 565 ( 1997 )

Johnson, J.

— The Petitioner, King County, seeks discretionary review of a trial court order holding the files of an open police investigation are subject to disclosure under the public disclosure act (PDA), RCW 42.17. The question presented in this case is whether information within an open police investigation can be withheld from disclosure under RCW 42.17.310(l)(d) because the nondisclosure of the information is essential to effective law enforcement. The superior court ordered an in camera review of the entire file to segregate "public” documents, which must be disclosed, from "non public” documents, exempt from disclosure, because disclosure of these documents (1) renders law enforcement efforts ineffective; (2) violates personal privacy interests; or (3) otherwise is exempt under the PDA. We reverse the superior court and hold the entire file is categorically exempt from disclosure.

FACTS

On January 26, 1969, civil rights leader Edwin Pratt was murdered at his home in King County. The crime has not been solved. According to personnel of the King County Department of Public Safety (Department) and the Federal Bureau of Investigation (FBI), the case is open and the investigation active.

Richard Gies is the King County detective currently assigned to the case. Detective Gies associated himself with the investigation because he reviewed the file on his own initiative in 1990 or 1991. Prior to Detective Gies’ review of the Pratt file, it was housed in a specific room where all unsolved homicide files are kept. According to Detective Gies, the last documents to be placed in the Pratt file were from the mid 1970s. There was no detective assigned to the case when he initiated his review.

In March 1994, David Newman, a freelance journalist, formally requested access to the Edwin Pratt murder file in a letter addressed to the King County Department of Public Safety. The request was submitted pursuant to RCW 42.17, the public disclosure act. Except for access to the initial incident report, Newman’s request was denied by the Department’s legal advisor, Kyle Aiken, in a letter dated March 24, 1994. This denial was based on RCW 42.17.310(l)(d), which permits nondisclosure of public documents essential to effective law enforcement or for protecting rights of privacy. Further, Aiken stated this was an open case and confidentiality of the records had to be maintained. The initial incident report released to Newman was heavily redacted.

A number of letters were sent by public officials and interested citizens requesting the public disclosure of the Edwin Pratt murder file. At the request of King County’s executive’s office, Aiken reexamined her denial of the investigative documents and determined more information could be disclosed. The release of more information was justified by the Department as an investigative technique which might prompt someone to come forward with more information. In October 1994, the Department re-released the incident report with much less information redacted.

On December 20, 1994, Newman filed a lawsuit under ROW 42.17. Newman filed a motion for partial summary judgment on March 15, 1996, seeking a declaratory judgment that the Department violated the PDA, statutory penalties, and attorney’s fees under the PDA for tardy disclosure of documents. The Department filed a cross-motion for summary judgment, arguing the open investigation file was categorically exempt. The Department attempted to show, through evidence in the form of declarations, that nondisclosure of the requested open criminal investigation file was essential to eifective law enforcement.

Newman filed a second motion for summary judgment on April 12, 1996. Newman requested the Department be ordered to deliver to the court the entire Edwin Pratt murder investigation file; that the court conduct an in camera review of the file to determine which documents may be disclosed; that the court grant declaratory judgment the Department violated the public disclosure act; and that the court grant statutory penalties and attorney’s fees to Newman. The Department again filed declarations of law enforcement personnel asserting the essential need for law enforcement to maintain confidentiality of open criminal investigation files.

The superior court denied King County’s cross-motion for summary judgment, granted Newman’s partial summary judgment, and held the investigation file could not have a blanket exemption from disclosure. Newman’s second motion for summary judgment was also granted. The court ordered the County to deliver all documents to the court for in camera review. The court ordered the County to file with the court and deliver to Newman declarations from personnel familiar with the Pratt investigation which would assist the court with the in camera review. The court also awarded Newman statutory penalties and attorney’s fees.

On November 13, 1996, this court granted the County’s request for discretionary review of the trial court’s rulings.

ANALYSIS

The Washington Public Disclosure Act

Although the public disclosure act was designed to provide open access to governmental activities, the PDA includes specific exemptions which limit access to some documents. We must determine whether nondisclosure of public documents contained in an open criminal investigation file is essential for effective law enforcement and, therefore, exempt under RCW 42.17.310(l)(d). The present case requires us to define the scope of the statutory exemption.

The PDA reflects the belief that the public should have full access to information concerning the working of the government. Amren v. City of Kalama, 131 Wn.2d 25, 31, 929 P.2d 389 (1997). The purpose of the PDA is to ensure the sovereignty of the people and the accountability of the governmental agencies that serve them. RCW 42.17.251.

This court has found that the PDA is a "strongly worded mandate for broad disclosure of public records.”¹ Amren, 131 Wn.2d at 31 (quoting Progressive Animal Welfare Soc’y v. University of Wash., 125 Wn.2d 243, 251, 884 P.2d 592 (1994)); Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 33, 769 P.2d 283 (1989). Neither party debates whether this is an agency or a public record within the meaning of the PDA. The PDA is to be liberally construed to promote full access to public records, and its exemptions are to be narrowly construed. Amren, 131 Wn.2d at 31; Progressive Animal Welfare Soc’y, 125 Wn.2d at 251; RCW 42.17.251.

Judicial review of agency denials of public disclosure requests is de novo. RCW 42.17.340(3). The court determines the application of a claimed statutory exemption without regard to any exercise of discretion by the agency. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 129-30, 580 P.2d 246 (1978).

Exemptions

Once documents are determined to be within the scope of the PDA, disclosure is required unless a specific statutory exemption is applicable. Dawson v. Daly, 120 Wn.2d 782, 789, 845 P.2d 995 (1993); RCW 42.17.260(1). King County argues the contents of the Pratt murder file are exempt under RCW 42.17.310(1)(d), the "effective law enforcement” exemption. This section provides:

Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the •responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy.

RCW 42.17.310(l)(d). Statutory exemptions are narrowly construed because the PDA requires disclosure, and the agency claiming the exemption bears the burden of proving that the documents requested are within the scope of the claimed exemption. Brouillet v. Cowles Publ’g Co., 114 Wn.2d 788, 793, 791 P.2d 526 (1990).

King County argues nondisclosure of information within an open criminal investigation file is essential for effective law enforcement, and argues privacy rights must be protected by nondisclosure. The County’s primary argument for nondisclosure of all open criminal investigations is, simply, that disclosure of any open criminal file would inhibit effective police work. The County supports its position, arguing the exemption: (1) allows law enforcement agencies nationwide to share information; (2) prevents inadvertent or premature release of confidential details that would jeopardize the effectiveness of an investigation or violate a person’s right to privacy; and (3) allows the police to determine, based on their professional judgment, when and how investigative information will be released so that apprehension and prosecution are possible. The County also argues nondisclosure protects the privacy interests of witnesses, suspects, defendants, and nondisclosure ensures a defendant’s right to a fair trial.

Essential to Effective Law Enforcement

This court must determine if nondisclosure of information within the Pratt murder investigation file is essential to effective law enforcement. This court has not specifically addressed whether documents within an open criminal investigation file are essential to effective law enforcement, nor has the Legislature specifically defined this phrase. An inherent clash exists between the PDA’s presumption and preference for disclosure, prior case law requiring a narrow interpretation of exemptions, and the broad language of the exemption.

The determination of the scope of the exemption requires a two-step analysis. The statute first requires the information be compiled by law enforcement. Newman argues the newspaper articles within the file were not compiled by law enforcement and, therefore, do not fit within this first requirement. The United States Supreme Court addressed this argument in John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S. Ct 471, 107 L. Ed. 2d 462 (1989), and concluded documents that were created for one "purpose . . . were not disqualified from being 'compiled’ again later for a different purpose.” John Doe Agency, 493 U.S. at 155. We agree. Documents can serve more than one purpose, and documents can be compiled by law enforcement and remain available in their original and unprotected capacity. Under this definition of compiled, any documents placed in the investigation file satisfy the requirement that the information is compiled by law enforcement. The newspaper articles and any other information contained in the open investigation file were compiled by law enforcement in an investigative capacity and fulfill the first inquiry despite Newman’s ability to gain access to this information in another form.

The second step in the analysis requires the document to be essential to effective law enforcement. In past cases, Washington’s PDA has been analogized to the Federal Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1994); see Cowles Publ’g Co. v. State Patrol, 109 Wn.2d 712, 731, 748 P.2d 597 (1988) (newspaper publisher requested internal investigation information about police officers who were the subject of citizen complaints). This court noted that both statutes (the FOIA and the PDA) protect "enforcement proceedings” and provide exemptions from disclosure of records which would jeopardize criminal investigations. Cowles Publ’g Co., 109 Wn.2d at 731.

When the exemption is claimed by an agency, the United States Supreme Court has stated it is feasible for a court to make a "generic determination” about what is essential for effective law enforcement. See National Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 223-24, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978). In determining if an investigation is leading toward an enforcement proceeding, the federal courts examine (1) "affidavits by people with direct knowledge of and responsibility for the investigation . . .”; (2) whether resources are allocated to the investigation; and (3) whether enforcement proceedings are contemplated. Dickerson v. Department of Justice, 992 F.2d 1426, 1431-32 (6th Cir. 1993). We agree with this approach. These three inquiries require the agency to explain why documents fall within the exemption and provide a basis to define the scope of the exemption.

After employing this test, it is evident disclosure is not required. The County has shown that it and the FBI have personnel assigned to the case. Evidence was presented by individuals responsible for the investigation who stated the case was still open and enforcement proceedings were contemplated. The evidence also establishes the documents requested cannot be disclosed because their release would impair the ability of law enforcement to share information and would inhibit the ability of police officers to determine, in their professional judgment, how and when information will be released. We hold the broad language of the statutory exemption requires the nondisclosure of information compiled by law enforcement and contained in an open and active police investigation file because it is essential for effective law enforcement. The language of the statute provides for a categorical exemption for all records and information in these files.

In other contexts, this court has stated

In general, the Public Records Act does not allow withholding of records in their entirety. Instead, agencies must parse individual records and must withhold only those portions which come under a specific exemption. Portions of records which do not come under a specific exemption must be disclosed.

Progressive Animal Welfare Soc’y, 125 Wn.2d at 261. This approach cannot be followed in this case because the statute does not define or establish any guidelines to limit the scope of the exemption. The ongoing nature of the investigation naturally provides no basis to decide what is important. Requiring a law enforcement agency to segregate documents before a case is solved could result in the disclosure of sensitive information. The determination of sensitive or nonsensitive documents often cannot be made until the case has been solved. This exemption allows the law enforcement agency, not the courts, to determine what information, if any, is essential to solve a case. The language used in the statute protects law enforcement agencies from disclosure of the contents of their investigatory files.

King County has no duty to disclose any information contained in an open investigation file because the documents are exempt under RCW 42.17.310(l)(d). We conclude these documents are essential to effective law enforcement because the case is open; evidence presented specifically explains the burden placed on the agency’s ability to perform its given role; and enforcement proceedings are still contemplated. King County has met its burden of showing the language and scope of the statutory exemption are broad and encompass all documents. No segregation of the documents is provided for under the language of the exemption.

Statutory Penalties and Attorney Fees

Under the statute the trial court awarded Newman both attorney’s fees and a statutory penalty. Since we reverse, Newman does not prevail against an agency in court and is not entitled to any statutory costs, fees, or penalties.

CONCLUSION

We hold RCW 42.17.310(l)(d) provides a broad categorical exemption from disclosure of all information contained in an open active police investigation file and reverse the superior court. Accordingly, we reverse the superior court’s order for an in camera review of the entire investigation file, and its award of attorney’s fees and statutory penalties.

Dolliver, Smith, Guy, and Talmadge, JJ., concur.

1 RCW 42.17.020(36) defines a "public record”: " 'Public record’ includes any-writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”