Predisik v. Spokane Sch. Dist. No. 81 ( 2015 )

Fl LE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
ANTHONY J. PREDISIK and )
CHRISTOPHER KATKE, ) No. 90129-5
)
Petitioners, )
) EnBanc
v. )
)
SPOKANE SCHOOL DISTRICT NO. )
81, )
) Filed APR 0 2 2015
Respondent. )
__________________________ )
Yu, J.-This case involves two public school employees who are on paid
administrative leave while their employer investigates allegations of misconduct.
We must decide if public records that reveal these investigations are occurring-
but do not describe the allegations being investigated-implicate the employees'
privacy rights under the Public Records Act (PRA), chapter 42.56 RCW. We hold
they do not. Because no exemption applies to withhold the records from public
inspection, we reverse and remand with instructions to order the records at issue
disclosed in their entirety without redaction.
Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
FACTS AND PROCEDURAL HISTORY
Anthony J. Predisik and Christopher Katke are longtime employees of the
Spokane School District No. 81 (District). In late 2011 and early 2012, the District
began to investigate Predisik and Katke after individuals made separate, unrelated
allegations against the two employees. The substance behind those allegations is
not in the record, but the District's investigations are apparently ongoing and
entering their fourth year. The District placed Predisik and Katke on
administrative leave and has paid salaries to both employees while it investigates.
In the spring of 2012, two media outlets submitted public records requests to
the District. One request sought the "administrative leave letter given to Anthony
Predisik, a Shadle Park High School counselor." Clerk's Papers at 50. The other
request asked for "information on all district employees currently on paid/non-paid
administrative leave." Id. at 331. The requests returned three public records
relevant to this dispute.
The first record is Predisik's "administrative leave letter," a short letter
informing Predisik that he has been placed on administrative leave "pending
completion of the District's investigation into allegations of inappropriate
interactions with a former student." Ex. P-1. It also tells Predisik he is banned
from district property and from talking with students about the matter during the
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investigation. The letter does not describe the allegations in any further detail and
does not name Predisik's accuser.
The second and third records are spreadsheets that document the amount of
leave pay Predisik and Katke had accumulated through April2012. Exs. P-2, P-3.
The spreadsheets, one for each employee, contain columns for the employee's
name, the date of pay, the hours paid, the rate of pay, and a position code. Id. The
final column indicates the reason for leave, which is described generically for both
Predisik and Katke as "[a]llegations currently under investigation." Id. Similar to
the leave letter, the spreadsheets provide no further detail about the allegations or
the accusers.
Predisik and Katke separately sued the District to enjoin disclosure of the
leave letter and spreadsheets, alleging each record is exempt under the "[p]ersonal
information" and "investigative" record exemptions ofRCW 42.56.230(3) and
42.56.240(1 ). The District opposed the injunction and argued the leave letter and
spreadsheets should be disclosed. 1 The trial court consolidated the two cases, and
the parties filed cross motions for summary judgment. Citing our opinion in
Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wash. 2d 199, 189 P.3d
139 (2008), the trial court found that Predisik's and Katke's identities, but not the
1
The two media entities that requested the records elected not to join this action, but the District
adequately represents the public's interest in full disclosure.
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Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
records themselves, were exempt from disclosure under RCW 42.56.230(3). The
judge ordered all three records disclosed with Predisik's and Katke's names
redacted. The Court of Appeals affirmed. Predisik v. Spokane Sch. Dist. No. 81,
179 Wash. App. 513,319 P.3d 801 (2014).
We granted review to clarify when the PRA will recognize a right to privacy
in the identity of a public employee who is the subject of an open investigation by
his or her public employer. Predisik v. Spokane Sch. Dist. No. 81, 180 Wash. 2d
1021, 328 P.3d 903 (2014).
ANALYSIS
The PRA requires that agencies "shall make available for public inspection
and copying all public records," subject only to a handful of statutory exemptions.
RCW 42.56.070(1); see also Progressive Animal Welfare Soc 'y v. Univ. of Wash.,
125 Wn.2d 243,260, 884 P.2d 592 (1994) (PAWS II). The PRA ensures the
sovereignty of the people and the accountability of the governmental agencies that
serve them by providing full access to information concerning the conduct of
government. PAWS II, 125 Wash. 2d at 251. To effectuate that policy, we start with
the presumption that all public records are subject to disclosure. Agencies can
withhold a record only if it falls within one of the PRA's specific, limited
exemptions. RCW 42.56.070(1). These exemptions are narrow, and we apply
them in favor of partial disclosure where possible since "the PRA's purpose of
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Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
open government remains paramount." Resident Action Council v. Seattle Hous.
Auth., 177 Wn.2d 417,432,327 P.3d 600 (2013); see also RCW 42.56.070(1)
(requiring that agencies redact records only "[t]o the extent required to prevent an
unreasonable invasion of personal privacy interests protected by [the PRA]" and
produce the remainder of the record). Similarly, the PRA reminds us "that free and
open examination of public records is in the public interest, even though such
examination may cause inconvenience or embarrassment to public officials or
others." RCW 42.56.550(3).
Predisik and Katke argue that two of the PRA' s exemptions independently
justify withholding the leave letter and spreadsheets from disclosure. First, the
employees assert the records contain personal information, the disclosure of which
would violate their rights to privacy. RCW 42.56.230(3). Second, they argue the
records constitute investigative records that are essential to law enforcement. RCW
42.56.240(1). We apply each exemption in turn.
A. Personal information exemption
Predisik and Katke rely principally on RCW 42.56.230(3), which exempts
from disclosure "[p]ersonal information in f1les maintained for employees ... of
any public agency to the extent that disclosure would violate their right to
privacy." Application of this exemption involves three separate questions: (1)
whether the records contain personal information, (2) whether the employees have
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Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
a privacy interest in that personal information, and (3) whether disclosure of that
personal information would violate their right to privacy. Bellevue John Does, 164
Wash. 2d at 210. The first question is not in dispute. The leave letter and
spreadsheets, which identify Predisik and Katke by name, contain "'personal
information' [i.e., the employees' identities] because they relate to particular
people." !d. at 211.
The existence of "personal information" in a public record is necessary to
the exemption, but it is not sufficient alone to withhold the record. Employees
must also demonstrate that they have a right to privacy in personal information
contained in a record and if such a right exists, that disclosure would violate it.
The personal information at issue here is Predisik's and Katke's identities when
they are contained in public records disclosing that the District is investigating
allegations of misconduct. So we next must decide whether the PRA grants public
employees under investigation a right to privacy in their identities.
The statute's text offers little guidance to answer this question. Although the
PRA expressly provides "the test for determining when the right to privacy is
violated[, it] does not explicitly identify when the right to privacy exists."
Bainbridge Island Police Guild v. City ofPuyallup, 172 Wash. 2d 398, 412-13, 259
P.3d 190 (2011) (footnote omitted) (citing Bellevue John Does, 164 Wash. 2d at 212).
We previously used principles of tort law to fill this definitional void and define
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Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
the contours of the PRA's privacy right. In Hearst Corp. v. Hoppe, 90 Wash. 2d 123,
135, 580 P.2d 246 (1978), we concluded that the "right of privacy," as it is used in
the PRA, means "what it meant at common law," and we adopted the definition in
the Restatement (Second) o.f'Torts § 652D (1977) (§ 652D).
Therefore, a person has a right to privacy under the PRA only in '"matter[s]
concerning the private life."' Id. at 135 (quoting§ 652D). To explain how that
standard is applied in practice, we looked to theRestatement's summary of the
right to privacy:
"Every individual has some phases of his life and his activities
and some facts about himself that he does not expose to the public eye,
but keeps entirely to himself or at most reveals only to his family or to
close personal friends. Sexual relations, for example, are normally
entirely private matters, as are family quarrels, many unpleasant or
disgraceful or humiliating illnesses, most intimate personal letters, most
details of a man's life in his home, and some of his past history that he
would rather forget."
Id. at 136 (quoting § 652D cmt. b, at 386). This comment "illustrates what nature
ofj'acts are protected by this right to privacy," id. (emphasis added), and taken in
context makes clear that the PRA will not protect everything that an individual
would prefer to keep private. The PRA's "right to privacy" is narrower.
Individuals have a privacy right under the PRA only in the types of "private" facts
fairly comparable to those shown in the Restatement.
Using the Restatement as a rubric, we conclude that the PRA does not
recognize a right of privacy in the mere fact that a public employer is investigating
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Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
an employee. In so holding, we distinguish the investigation itself from the
employee's conduct giving rise to that investigation. This difference, though
subtle, is very important to the Restatement's privacy interest analysis. A public
employer's investigation is certainly not a private matter: it arises exclusively from
the employee's public employment. The investigation is simply an administrative
process. It is not akin to a '"family quarrel[]'" or a "'humiliating illness[,]"' nor
does it touch on the employee's "'life [at] home."' Id. (quoting§ 652D cmt. b, at
386). To the contrary, the investigation relates to a part of the employee's life-
his or her profession-that is freely exposed to the public. A public employer's
investigation is an act of the government, not a closely held private matter that
gives rise to a privacy right under the PRA.
We again contrast the employer's investigation, in which there is no privacy
interest, with the allegations the employer is investigating. We acknowledge that
such allegations may encompass some "past history that [the employee] would
rather forget" and could come within that example or others in the Restatement that
would implicate a privacy right under the PRA. But the mere fact there is an open
investigation into allegations of misconduct is not, by itself: a reason to withhold a
record from disclosure. Agencies and courts must review each responsive record
and discern ti·om its four corners whether the record discloses factual allegations
that are truly of a private nature, using the Restatement as a guide. Though there is
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an inherent degree of fact-finding in this analysis, a record-specific inquiry is the
only way to adhere to the PRA's mandate that exemptions be construed narrowly.
RCW 42.56.030.
Applying this rule, we conclude that neither the leave letter nor the
spreadsheets implicate a privacy right under the PRA. Those records disclose only
that the District has opened an investigation and placed Predisik and Katke on
leave during its pendency; the records do not disclose the factual allegations
underlying that investigation. From these three records, the public learns only
matters related to Predisik's and Katke's status as public employees and nothing
about their personal lives. For the reasons we explain above, this information does
not trigger a privacy interest under the PRA.
Predisik and Katke argue our decision in Bellevue John Does requires we
find a privacy interest here. We held in that case that teachers have a right to
privacy in their identities in records related to unsubstantiated allegations, since in
those instances "the fact of the allegation ... does not bear on the teacher's
performance or activities as a public servant." 164 Wash. 2d at 215. But as we
explained, the existence of a privacy right under the PRA depends on the types of
facts disclosed and is not amenable to a bright-line rule.
We do not find Bellevue John Does dispositive when applied to the records
in this case and the limited, public nature of the facts those records disclose.
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Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
Again, a public employer's investigation is a governmental act and a consequence
of employment with the government. Unlike the records at issue in Bellevue John
Does, the leave letter and spreadsheets do not disclose any salacious facts that one
might consider a private matter. Indeed, the records contain no specific allegations
of misconduct at all. It makes no difference if the allegations here are eventually
substantiated because the records do not describe them.
We do not read Bellevue John Does to create a sweeping rule that exempts
an employee's identity from disclosure any time it is mentioned in a record with
some tangential relation to misconduct allegations. A rule that broad would justify
withholding, or at least redacting, nearly every record created during the course of
the District's investigation. Even Bellevue John Does recognizes the PRA entitles
the public to "documents concerning the nature of the allegations and reports
related to the investigation and its outcome." Id. at 221.
Because we hold that no right of privacy exists in the leave letter or
spreadsheets, we need not decide if disclosure of those records would violate that
right. See RCW 42.56.050 (providing the test for determining when disclosure
violates the right to privacy if such a right exists). We observe, however, that the
public has a legitimate concern in the identities of public employees who are the
subject of investigations. The PRA is meant to engender the people's trust in their
government. The recent unrest in Ferguson, Missouri, is an extreme example of
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how that trust is eroded when the public suspects the government is withholding
information to protect its own. See, e.g., Tanzina Vega, Timothy Williams & Erik
Eckholm, Emotions Flare in Missouri Amid Police Statements, N.Y. TIMES (Aug.
15, 2014), available at www.nytimes.com/2014/08/16/us/darren-wilson-identified-
as-officer-in-fatal-shooting-in-ferguson-missouri.html.
But secrecy can breed suspicion in more subtle ways, too. For example, if
we accepted Predisik's and Katke's position, the public would never learn about an
investigation unless and until the underlying allegations are substantiated at some
point in the future. There would be no opportunity for the public to discover the
District's ongoing three-year investigation, much less question the effectiveness of
what some might consider an awfully long process. Government cannot be held
accountable for actions it shields from the public's eye.
Public employees are paid with public tax dollars and, by definition, are
servants of and accountable to the public. The people have a right to know who
their public employees are and when those employees are not performing their
duties. In sum, we hold there is no privacy right under the PRA in the mere fact
that a public employer is investigating a public employee or in the employee's use
of administrative leave. Both are simply functions of the government. Without
such a privacy right, RCW 42.56.230(3) does not apply to exempt the leave letter
or spreadsheets from disclosure.
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B. Investigative record exemption
Predisik and Katke also argue that the investigative records exemption
requires that the District withhold the three records. RCW 42.56.240(1 ). A record
falling within this exemption must, among other requisites, "be essential to law
enforcement or essential to the protection of privacy." Koenig v. Thurston County,
175 Wash. 2d 837, 843,287 P.3d 523 (2012) (citing Cowles Publ'g Co. v. State
Patrol, 109 Wash. 2d 712, 728, 748 P.2d 597 (1988)). The three records here are
neither.
The leave letter and spreadsheets are not essential to law enforcement. Our
decision in Brouillet v. Cowles Publishing Co., 114 Wash. 2d 788, 795, 791 P.2d 526
(1990), is dispositive. There we considered whether the superintendent of public
instruction (SPI), who actually wields disciplinary authority over teaching
credentials, performed law enforcement functions. We concluded the SPI could
not rely on the investigative records exemption to withhold records because "it
does not enforce law," and we rejected the agency's "attempt to characterize its
supervision of its employees as law enforcement" activity under the exemption. !d.
at 795-96. The District has even less investigative and disciplinary authority than
the SPI, and its records similarly are not exempted under RCW 42.56.240(1 ).
Nor are the leave letter and spreadsheets essential to the protection of
privacy. The PRA is consistent in its definition of "privacy," which is the same
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definition we announced in Hearst Corp. and applied above. RCW 42.56.050;
LAWS OF 1987, ch. 403, § 1. As discussed in detail earlier, Predisik and Katke
have no right to privacy in records disclosing only the fact that they are the
subjects of an open investigation.
CONCLUSION
Public employees have no privacy right in the fact that they are being
investigated by their public employer. The investigation is merely a status of their
public employment, not an intimate detail of their personal lives, and without such
a privacy right, RCW 42.56.230(3) and .240(1) are inapplicable. We reverse the
Court of Appeals and remand with instructions to order the records at issue
disclosed in their entirety without redaction.
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Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
WE CONCUR:
;.-:...,
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Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
No. 90129-5
FAIRHURST, J. (dissenting)-! dissent because Anthony J. Predisik and
Christopher Katke (Employees) have a right to privacy in their identities. The
Employees' right to privacy is violated if the records at issue are disclosed. However,
such records can be redacted to protect the Employees' privacy interest. To reach a
contrary result, the majority deviates from our precedent and creates a new rule.
ANALYSIS
The primary issue in this case is whether under the Public Records Act (PRA),
chapter 42.56 RCW, the identities of the Employees are exempt from disclosure.
The majority's holding that the Employees' identities are not exempt from disclosure
is contrary to our case law. The question presented is resolved by our settled
jurisprudence.
We have construed the PRA as "a strongly worded mandate for broad
disclosure of public records." Hearst Corp. v. Hoppe, 90 Wash. 2d 123, 127, 580 P.2d
246 (1978). The PRA protects the public's right to be informed of agency decisions.
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Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
RCW 42.56.030. To fully protect the public's interest, the PRA requires that its
provisions be construed liberally and its exemptions be construed narrowly. !d.
Unless a record falls within a specific PRA exemption or other statutory exemption,
the PRA requires state and local agencies to disclose all public records upon request.
RCW 42.56.070(1). If a portion of a record should be redacted or remain
undisclosed, "an agency shall delete identifying details in a manner consistent with
[the PRA] when it makes available or publishes any public record." !d. The agency
must justify each redaction in writing. !d.
The Employees argue that two of the PRA's exemptions justify withholding
the records in this case: (1) the personal information exemption, RCW 42.56.230(3),
and (2) the investigative records exemption, RCW 42.56.240(1). We disagree with
the majority's holding regarding the personal information exemption but agree with
the majority's analysis and decision regarding the investigative records exemption.
The Personal Information Exemption
The PRA exempts from disclosure "[p]ersonal information in files maintained
for employees, appointees, or elected officials of any public agency to the extent that
disclosure would violate their right to privacy." RCW 42.56.230(3). To determine
if records constitute personal information exempt from disclosure, we use a three-
part inquiry: ( 1) whether the allegations constitute personal information, (2) whether
those claiming that the exemption applies have a right to privacy in their identities,
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Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
and (3) whether disclosure of the personal information would violate their right to
privacy. Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wash. 2d 199,
209, 189 P.3d 139 (2008).
It is undisputed that the leave letter and the spreadsheets that identify the
Employees by name constitute personal information. See id. at 211 ("The teachers'
identities are 'clearly personal information' because they relate to particular
people."); majority at 6. However, personal information is exempt from disclosure
only to the extent that disclosure would violate the individual's right to privacy.
Bellevue John Does, 164 Wash. 2d at 212.
The right to privacy is intended to have the same meaning as it was given by
this court in Hearst. Id. Hearst, 90 Wn.2d at 135-36, defined the "right to privacy"
by looking to the common law tort of invasion of privacy and adopted the definition
of "invasion of privacy" set forth in the Restatement (Second) of Torts § 652D
( 1977). According to the Restatement, '" [o]ne who gives publicity to a matter
concerning the private life of another is subject to liability to the other for invasion
of his privacy, if the matter publicized is of a kind that (a) would be highly offensive
to a reasonable person and (b) is not of legitimate concern to the public."' Hearst,
90 Wash. 2d at 135-36 (quoting RESTATEMENT§ 652D).
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Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
A. The Employees Have a Right to Privacy in Their Identities
While the above definition describes when the right to privacy is violated, it
does not define when the right to privacy exists. See Bainbridge Island Police Guild
v. City of Puyallup, 172 Wash. 2d 398, 412-13, 259 P.3d 190 (2011). We have stated
that the right to privacy exists '"in matter[s] concerning the private life."' 1 Bellevue
John Does, 164 Wash. 2d at 212 (alteration in original) (internal quotation marks
omitted) (quoting Hearst, 90 Wash. 2d at 135). We have also noted that there is a right
to privacy in unsubstantiated allegations. Morgan v. City ofFederal Way, 166 Wash. 2d
747, 756, 213 P.3d 596 (2009) ("Unsubstantiated allegations are exempt from
disclosure.").
In Bellevue John Does we found that if "a complaint regarding misconduct
during the course of public employment is substantiated or results in some sort of
discipline, an employee does not have a right to privacy in the complaint." 164
Wash. 2d at 215. However, "[a]n unsubstantiated or false accusation of sexual
misconduct is not an action taken by an employee in the course of performing public
duties." !d. In Bellevue John Does, public school teachers sought to enjoin their
respective school districts from releasing their names in response to a public records
request. !d. at 205. The request was for all records relating to allegations of sexual
1
The Restatement summarizes the right to privacy in comment b to § 652D, and this
comment is cited on page 7 of the majority opinion.
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Fairhurst, J. (dissenting)
misconduct by teachers in the prior 10 years. !d. at 206. We held that the teachers
had a right to privacy in their identities and ordered that the records could be
disclosed only if the teachers' names were redacted. !d. at 215, 227. We noted that
the unsubstantiated allegations of sexual misconduct that never resulted in any form
of discipline were matters concerning the teachers' private lives and were not
specific instances of misconduct committed while in the course of employment. !d.
at 215. In our reasoning we noted that "[t]he fact of the allegation, not the underlying
conduct, does not bear on the teacher's performance or activities as a public servant."
!d. Moreover, we stated that "[t]he mere fact of the allegation of sexual misconduct
toward a minor may hold the teacher up to hatred and ridicule in the community,
without any evidence that such misconduct ever occurred." !d.
In Morgan, a post-Bellevue John Does decision, we held that the personal
information exemption did not apply to the records at issue. Morgan, 166 Wash. 2d at
276. In Morgan, the judge argued that a report produced by the investigating attorney
was exempt from disclosure because it contained unsubstantiated allegations that
were highly offensive. !d. The report alleged that the judge created a hostile work
environment by, among other things, angry outbursts and inappropriate gender-
based comments. !d. In our reasoning, we first addressed whether the judge's right
to privacy would be violated if the records were disclosed. We found that the
allegations against the judge were not as offensive as allegations of sexual
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Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
misconduct with a minor, like in Bellevue John Does, and would not be highly
offensive if disclosed. Next, we stated that contrary to the judge's assertions, the
allegations were not unsubstantiated. ld. The records at issue in Morgan evaluated
the credibility of each person who made an allegation and found that the allegations
were likely true. ld. We held that the judge did not have a right to privacy in the
responsive records. Id.
Here, the question 1s whether the Employees, who are the subject of
unsubstantiated allegations of misconduct, have a right to privacy in their identities.
The administrative leave letter informed that Predisik was placed on administrative
leave "pending completion of the District's investigation into allegations of
inappropriate interactions with a former student." Ex. P-1. The leave slips indicate
that the Employees are on leave for "[a]llegations currently under investigation."
Exs. P-2, P-3. The documents provided no further information about the allegations
or the accusers. Like Bellevue John Does and unlike Morgan, the allegations in the
records are unsubstantiated and there is no evidence that the accusations resulted in
any form of discipline. Because the allegations were unsubstantiated, they do not
bear on the teachers' performance as public servants and do not inform the public of
specific instances of misconduct during the course of employment. Therefore, the
Employees have a right to privacy in their identities.
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Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
The majority found that because the records did not disclose "salacious facts,"
the records here are not comparable to those examined in Bellevue John Does.
Majority at 10. The majority set forth a new rule that requires "[a]gencies and courts
[to] review each responsive record and discern from its four corners whether the
record discloses factual allegations that are truly of a private nature." !d. at 8.
Applying this rule, the majority found that the records do not disclose private
information about the employees because the records related only to the Employees'
status as public employees. !d. at 9. The majority distinguished the "investigation
itself from the employee's conduct giving rise to that investigation." Id. at 8.
According to the majority, the fact that the investigation is occurring is not a private
matter because it relates to a part of the Employees' lives that are freely exposed to
the public. !d.
In reaching its conclusion, the majority disregards the fact that in Bellevue
John Does we found that unsubstantiated allegations of misconduct are not actions
taken by public employees during the course of performing public duties. 2 164
Wash. 2d at 215. Therefore, a public employee's identity when disclosed in connection
with unsubstantiated allegations or evidence of pending investigations is not related
2
To support its reasoning, the majority seems to rely on principles from the dissent in
Bellevue John Does. 164 Wash. 2d at 234 (Madsen, J., dissenting) (noting that the teachers did not
have a right to privacy because the allegations of specific instances of misconduct occurred while
the employees were performing their public duties).
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Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
to his or her status as a public employee. This principle was derived from past
precedent such as Cowles Publishing Co. v. State Patrol, 109 Wash. 2d 712, 725, 748
P.2d 597 (1988). In Cowles, we noted that the right to privacy is not violated when
a complaint about a specific instance of misconduct is substantiated, but where an
investigation is pending, disclosure would result in a more intrusive invasion of
privacy. The principle was reiterated in Morgan, where we noted that
unsubstantiated claims of misconduct are exempt from disclosure. 166 Wash. 2d at 756.
B. Disclosure of the Employees' Identities Would Violate Their Right to Privacy
Finding that the Employees have a right to privacy in their identities in
connection with unsubstantiated claims of misconduct is not the end of the analysis.
We next must consider whether the Employees' right to privacy would be violated
by disclosure. "A person's 'right to privacy' ... is invaded or violated only if
disclosure of information about the person: ( 1) Would be highly offensive to a
reasonable person, and (2) is not of legitimate concern to the public." RCW
42.56.050.
1. Highly Offensive
While our cases do not define the term "highly offensive," we have addressed
whether the disclosure of certain records would be highly offensive in several cases.
In these cases we have noted that embarrassment alone is not sufficient for a record
to be considered highly offensive. Dawson v. Daly, 120 Wash. 2d 782, 797, 845 P.2d
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Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
995 (1993). In Bellevue John Does we found that disclosing the identities of teachers
accused of sexual misconduct is highly offensive. 164 Wash. 2d at 216. Outside the
context of sexual misconduct allegations, we have held that disclosure of records
that discuss employee performance but that do not discuss specific instances of
misconduct, are presumed highly offensive. Dawson, 120 Wash. 2d at 797. However,
as noted above, in Morgan we found that specific, substantiated allegations of
inappropriate behavior and outbursts were not as offensive as allegations of sexual
misconduct. 166 Wash. 2d at 756.
Here, the allegations were of inappropriate behavior with a former student.
The spreadsheets also disclosed that both Employees were under investigation for
allegations of misconduct. The records, like those in Dawson, did not state specific
instances of misconduct but instead disclosed vague allegations. Unlike the
allegations in Morgan, the records here did not include facts or credibility findings
to substantiate the allegation of inappropriate behavior. As the Court of Appeals
noted, unsubstantiated allegations of misconduct, other than sexual misconduct, can
subject teachers to the same gossip and ridicule without actual evidence of
wrongdoing. Predisik v. Spokane Sch. Dist. No. 81, 179 Wash. App. 513, 520, 319
P.3d 801 (2014) (citing Bellevue John Does, 164 Wash. 2d at 220-21). Although the
allegations against the Employees were not sexual misconduct with a minor, the
disclosure of one's identity associated with vague allegations and evidence of
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Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
pending investigations related to one's profession would be highly offensive to a
reasonable person.
2. Legitimate Public Concern
Since disclosure would be highly offensive, we must consider if there is a
legitimate public concern in the identities of the Employees such that the records
must be disclosed. The application of this exemption turns on whether the concern
of the public is legitimate. Dawson, 120 Wash. 2d at 798. The term "legitimate" in the
context of the PRA means '"reasonable."' !d. If an allegation is unsubstantiated, the
matter is not of public concern. Bellevue John Does, 164 Wash. 2d at 221. Here, the
public does not have a legitimate interest in the names of teachers who are under
investigation for unsubstantiated allegations.
While there is not a legitimate public concern in the names of the teachers, the
public does have a legitimate concern in the leave slip and the spreadsheet. As the
Court of Appeals noted, the public has an interest in seeing that a government agency
conducts itself fairly and uses funds responsibly. Predisik, 179 Wash. App. at 520.
In Bellevue John Does, we found that the teachers' names could be redacted
to protect their privacy interests and such redaction would not harm the public
oversight of agency conduct. 164 Wash. 2d at 221-23 (noting that the identities of those
accused of unsubstantiated allegations of misconduct does not aid in effective
government oversight by the public). Furthermore, as the Court of Appeals noted,
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Fairhurst, J. (dissenting)
the leave slip and spreadsheets are not highly offensive when the identifying
information is redacted. Predisik, 179 Wash. App. at 520. Therefore the records should
be disclosed but with the identities of the teachers redacted.
The majority notes that there is a legitimate public interest in the identities of
the Employees. Majority at 10. According to the majority, if we redact or withhold
the records, the public would never find out about the investigation until the
allegations were substantiated, and the public has a right to know about employees
who are not performing their duties. Majority at 11. We generally agree. However,
we can uphold both the privacy interest of the Employees and the public's interest
in overseeing government actions by redacting the records. There is no evidence that
the Employees were not performing their duties. See Bellevue John Does, 164 Wash. 2d
at 217 ("' [T]he public as a rule has no legitimate interest in finding out the names of
people who have been falsely accused.'" (quoting Bellevue John Does 1-11 v.
Bellevue Sch. Dist. No. 405, 129 Wash. App. 132, 155-57, 120 P.3d 616 (2005))). By
redacting and releasing the documents, the public could learn of the ongoing
investigation and question its effectiveness without violating the privacy of the
Employees. See majority at 11.
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Fairhurst, J. (dissenting)
3. Redaction is Sufficient to Protect the Employees ' Privacy Interest
According to the Employees, the records in their entirety are exempt under
the personal information exemption, RCW 42.56.230(3). The Employees contend
that redaction is not sufficient to protect their privacy interest in their identities
because the public records request specifically asked for records related to Predisik,
and therefore the disclosure of records in response to that request necessarily links
his identity to the material.
We have rejected similar arguments. See Koenig v. City of Des Moines, 158
Wash. 2d 173, 183-84, 142 P .3d 162 (2006). In Koenig we held that there is no statutory
language or case law to support the argument that we should look beyond the record
at issue to determine whether it is exempt from disclosure. Id. at 183. In Koenig we
created a rule that agencies apply exemptions based only on the information the
record discloses on its face without regard for the request. This rule creates a uniform
disclosure system because it ensures that disclosure will not depend on how the
request is made, but on the individual record at issue. Id.
CONCLUSION
I would affirm the Court of Appeals. The Employees who are the subjects of
unsubstantiated allegations and pending investigations have a right to privacy in
their identities. This right is violated if the records at issue are disclosed in their
entirety to the public. However, if the identities of the Employees are redacted from
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Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
Fairhurst, J. (dissenting)
the records, the Employees will not have a right to privacy in the records. Therefore,
the records should be redacted and released. Because the majority finds that the
Employees do not have a right to privacy in their identities and holds that the records
at issue be disclosed in their entirety, I respectfully dissent.
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Fairhurst, J. (dissenting)
14