Sargent v. Seattle Police Dep't ( 2013 )

Fl LE
IN CLERf167 Wash. App. 1, 260 P.3d 1006 (2011). The Court of Appeals
held that the effective law enforcement exemption did not end when the case was referred
to the KCP A for filing or with the final witness interview but continued to apply
categorically until the case was referred for a second time to prosecutors and the
investigation was closed. I d. at 12-15. The court further held that the exemption applied
categorically to the internal disciplinary investigation of Officer Waters and hence the
SPD properly withheld those files as well. ld. at 21-22. Although the nondisclosure of
witness identities was not covered by the categorical exemption, the Court of Appeals
thought that the SPD may have reasonably relied on case law suggesting otherwise and
remanded to give the SPD an opportunity to justify its redaction. ld. at 18-19. The court
also held that the SPD properly withheld Sargent's nonconviction criminal history under
the CRPA. ld. at 20-21. Finally, the Court of Appeals reasoned that the trial court
abused its discretion in awarding a maximum penalty where there was no showing of bad
faith or gross negligence. ld. at 22-25. The court remanded for a redetermination of the
witness identification issue and reconsideration of the penalty.
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ANALYSIS
1. The PRA and the effective law enforcement exemption
a. Standard of review
Judicial review of agency denials ofPRA requests is de novo. RCW 42.56.550(3)
("Judicial review of all agency actions taken or challenged under RCW 42.56.030
through 42.56.520 shall be de novo."); Newman v. King County, 133 Wash. 2d 565, 571,
947 P.2d 712 (1997).
The PRA mandates broad public disclosure. RCW 42.56.030 ("The people, in
delegating authority, do not give their public servants the right to decide what is good for
the people to know and what is not good for them to know."); Newman, 133 Wash. 2d at
570; Hearst Corp. v. Hoppe, 90 Wash. 2d 123, 130, 580 P.2d 246 (1978). The PRA
requirement of disclosure is broadly construed and its exemptions are narrowly construed
to implement this purpose. RCW 42.56.030; Cowles Pub! 'g Co. v. Spokane Police Dep 't,
139 Wash. 2d 472, 476, 987 P.2d 620 (1999); Newman, 133 Wash. 2d at 571. Disclosure is
therefore mandated unless the agency can demonstrate proper application of a statutory
exemption to the specific requested information; the agency bears the burden of proof.
Newman, 133 Wash. 2d at 571 (stating that "the agency claiming the exemption bears the
burden of proving that the documents requested are within the scope of the claimed
exemption"); Hearst, 90 Wash. 2d at 130 ("The statutory scheme establishes a positive duty
to disclose public records unless they fall within the specific exemptions.").
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No. 87417-4
b. The PRA effective law enforcement exemption does not apply categorically
to block production of the criminal investigation materials Sargent
requested
Sargent submitted two PRA requests to the SPD for information related to the
criminal investigation concerning his confrontation with Officer Waters. The SPD
denied Sargent's requests, reasoning that the PRA's exemption for effective law
enforcement categorically prevented disclosure of the information. The effective law
enforcement exemption to the PRA provides that the following information is exempt
from disclosure:
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 42.56.240(1).
Like all exemptions to the PRA, this exemption is to be construed narrowly. This
policy of narrow construction is embedded in the PRA statute itself: "This chapter shall
be liberally construed and its exemptions narrowly construed to promote this public
policy [of disclosure] and to assure that the public interest will be fully protected." RCW
42.56.030. The PRA also instructs courts reviewing agency actions to "take into account
the policy of this chapter 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).
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Typically, the agency claiming exemption must prove that nondisclosure of the
particular requested documents is essential to effective law enforcement. However, this
court has held that the effective law enforcement exemption applies categorically in a
narrow set of circumstances. In this case, the SPD did not prove why the exemption
applied to each document Sargent requested, but instead contended that the exemption
applied categorically and automatically to block production of the entire investigative
file.
We established the categorical application of the effective law enforcement
exemption in Newman. In Newman, a journalist submitted a PRA request for access to an
ongoing murder investigation file. 133 Wash. 2d at 568-69. The law enforcement agency
denied Newman's request, claiming that nondisclosure of the entire file was essential to
effective law enforcement. I d. Although the court recognized that agencies typically
bear the burden to prove that nondisclosure of particular documents is essential to
effective law enforcement, the circumstances of the case justified categorical exclusion of
the entire file. Id. at 573-74. Specifically, because the crime was unsolved and
enforcement proceedings were still contemplated, the agency should not be required to
parse the relevance of individual documents. I d. at 57 4-7 5. In reaching this conclusion,
the court focused on two factors. Id. at 574; see Cowles, 139 Wash. 2d at 477-78. First, the
police would have difficulty segregating sensitive and nonsensitive information where the
investigation was ongoing. Second, the law enforcement agency, rather than the court,
was the proper party to determine whether nondisclosure was essential. For these
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reasons, this court held that the requested information was categorically exempt from
disclosure.
Two years later in Cowles, this court limited the categorical application
established in Newman. In Cowles, a reporter requested information related to the arrest
of an assistant city attorney for drunk driving and attempted assault. 139 Wash. 2d at 474-
75. At the time of the PRA request, the police had already referred the case to the
prosecutor for filing. !d. The court reasoned that the exemption did not apply
categorically because the policies motivating Newman were absent. First, because the
suspect was lmown and the case was already referred to a prosecutor, there was no risk of
disclosing sensitive information that might interfere with apprehension of the suspect; the
agency could thus assess the relevance of individual documents. !d. at 4 77-78. Second,
the police were not "institutionally better suited" than courts to determine which
information was essential to law enforcement. !d. at 4 78-79. The court established a
bright line that "where the suspect has been arrested and the matter referred to the
prosecutor," nondisclosure is not categorical and automatic. !d. at 4 79-80. Instead, the
burden rests with the agency claiming exemption to prove the propriety of nondisclosure
to the trial court on a document-by-document basis. !d.
This court recently reinforced Cowles' limitation of the Newman categorical
exemption in Seattle Times Co. v. Serko, 170 Wash. 2d 581, 243 P.3d 919 (2010). In that
case, a Seattle Times reporter submitted a PRA request for information related to the
investigation of a city of Lakewood shooting of four police officers. !d. at 585-86. The
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respondents claimed the documents were properly categorically withheld under the
effective law enforcement exemption. !d. at 592-93. Because the murder investigation
was closed and the suspect deceased, the court concluded that the case "is outside the
realm of Newman and is on point with Cowles." !d. at 594. The effective law
enforcement exemption did not apply categorically, but instead would depend on a
"record-by-record analysis, with the requested records subject to in camera review by the
court." !d.
Like in Cowles and Serko, Sargent's request does not fall within the categorical
exemption created in Newman. The text of the PRA mandates narrow construction of its
exemptions. The categorical exemption of broad categories of information conflicts with
this policy. See Newman, 133 Wash. 2d at 574 (quoting Progressive Animal Welfare Soc 'y
v. Univ. of Wash., 125 Wash. 2d 243, 261, 884 P.2d 592 (1994) ("In general, the Public
Records Act does not allow withholding of records in their entirety.")). This is why the
categorical application created in Newman applies only to a small class of information,
the nondisclosure of which we are confident is always essential to effective law
enforcement: situations where police have not yet referred the matter to a prosecutor for a
charging decision and revelation to the defendant.
Here, the SPD had concluded its investigation and referred Sargent's case to the
prosecutor for a charging decision. At that point, the prosecutor could have pressed
charges and disclosed the information to Sargent. The fact that the prosecutor declined to
file charges and requested the SPD to conduct further investigation is of no import.
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No. 87417-4
Cowles recognized that referral to prosecutors signals the police's conclusion of its
investigation and is a bright line for termination of the categorical exemption. The
categorical exemption adopted in Newman is court created; it is not provided for in the
PRA. Expanding the court-made rule to cases that have been referred for charges but
rejected by the prosecutor is a sweeping change that is not justified by the express
language of the exemption, nor by the public policy favoring disclosure and
accountability of government agencies to the public they serve.
Additionally, neither of the policies motivating the court's decision in Newman is
present in this case. Unlike in Newman where there was an unidentified murderer on the
loose, here Sargent had been identified and taken into custody, the case was referred to
the prosecutor, and the prosecutor determined that there was not enough evidence to file
charges. These actions signaled that the case was solved and the SPD would no longer
have trouble segregating sensitive from nonsensitive information. Additionally, a court
would be in as good of a position as law enforcement to judge whether nondisclosure was
essential. The prosecutor's decision to refer the case back to the SPD for follow-up
investigation does not alter these facts. In sum, the policies underlying our decision in
Newman no longer apply and categorical application of the exemption is inappropriate.
The test proposed by the SPD is also unworkable. The Court of Appeals and the
SPD admit that the categorical exemption was lost when the case was first referred to the
prosecutor. If Sargent had submitted his requests during this time frame, instead of a few
weeks later when the case had been referred back to the SPD for follow-up, the SPD
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would have been required to prove that nondisclosure of each individual record was )
essential to effective law enforcement. It is nonsensical to deny Sargent access to these
same documents based on the timing of his request. Cowles established a workable
bright-line test that provides notice to both parties and reasonably accommodates the
competing interests of public access and effective investigation, and we see no reason to
alter this balance.
This is not to say that police cannot continue to protect investigations from
disclosure following referral to a prosecutor. Some of the information Sargent sought
may very well have been exempt. We simply hold that the SPD had the burden to parse
the individual documents and prove to the trial court why nondisclosure was essential to
effective law enforcement. See Cowles, 139 Wash. 2d at 479 (recognizing the propriety of
in camera review of specific documents to determine whether the exemption applies).
The SPD made no such showing. Accordingly, we reverse the Court of Appeals and
reinstate the trial court opinion on this point.
c. The PRA effective law enforcement exemption does not apply categorically
to block production of the internal investigation materials Sargent requested
When Sargent renewed his PRA request in February 2010, he added to his request
written and recorded communications regarding the SPD's internal disciplinary
investigation of Officer Waters following his confrontation with Sargent. The SPD
withheld the internal investigation information, arguing that the categorical exemption
established in Newman should extend to this class of information. We disagree.
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Internal investigation materials are "specific investigative records" subject to the
language of the effective law enforcement exemption. RCW 42.56.240(1); Cowles
Publ'g Co. v. State Patrol, 109 Wash. 2d 712, 728-29, 748 P.2d 597 (1988). This court has
held that the effective law enforcement exemption applies to all investigations '"designed
to ferret out criminal activity or to shed light on some other allegation of malfeasance."'
Koenig v. Thurston County, 175 Wash. 2d 837, 843, 287 P.3d 523 (2012) (quoting
Columbian Publ'g Co. v. City of Vancouver, 36 Wash. App. 25, 31, 671 P.2d 280 (1983)).
The internal investigation of police misconduct certainly aims to "shed light" on
"malfeasance" and so the SPD investigation of Officer Waters would be exempt if
nondisclosure was essential to effective law enforcement.
In State Patrol, this court held that nondisclosure of internal investigation
materials was essential to effective law enforcement in that case. 109 Wash. 2d at 729. The
court reasoned that Washington's effective law enforcement exemption has broader
application than the federal equivalent and as such "protects law enforcement agencies
and 'effective law enforcement' from destructive intrusion." !d. at 730-32. Because
"[ e]ffective law enforcement requires a workable reliable procedure for accepting and
investigating complaints against law enforcement officers," the court held that the
identities of witnesses and subjects of internal investigations were exempt from
disclosure. !d. at 729-33.
But we have never held this exemption to apply categorically to internal
investigations and we decline to do so here. Far from categorically exempting the entire
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investigation file, in State Patrol, this court held "in light of the circumstances of [that]
case" only the names of investigation witnesses and subjects were exempt from
disclosure. I d. at 729-30, 733; see also Ames v. City of Fircrest, 71 Wash. App. 284, 295,
857 P.2d 1083 (1993) ("The plurality holding in Cowles is case specific and does not
establish a broad principle that all information in the records of any investigation
characterized as an internal investigation is automatically exempt."). Here, the SPD
refused to disclose the entire internal investigation file, even though Sargent already
lmew that Waters was the subject of the investigation and was seeking more than witness
names.
Extension of the categorical effective law enforcement exemption to internal
agency investigations would also conflict with the central tenets of Newman. "The
investigative records exemption is designed to protect the integrity of law enforcement
investigations," and thus should only apply categorically when intimately related to that
law enforcement investigation. See Koenig, 175 Wash. 2d at 843. The Newman court
determined only that the exemption should apply categorically to an "open active police
investigation file." 133 Wash. 2d at 575. The internal investigation of Officer Waters does
not constitute an open active police investigation in the same sense. Although the
internal investigation of Officer Waters' conduct could have led to criminal charges, such
a criminal investigation would be conducted outside the parameters of the internal
investigation. The main purpose of the internal investigation is to reach an internal
disciplinary remedy for proved misconduct. The SPD could have segregated the
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information into sensitive and nonsensitive portions, and a court would have been able to
judge just as well as the police whether nondisclosure of the sensitive pieces was
essential to effective law enforcement or would merely present an "inconvenience or
embarrassment" to the SPD. See RCW 42.56.550(3); Cowles, 139 Wash. 2d at 477-78;
Newman, 133 Wash. 2d at 574.
The plain language of the effective law enforcement exemption also supports our
holding that the exemption does not apply categorically to internal investigations. The
exemption separates "investigative, law enforcement, and penology agencies" from "state
agencies vested with the responsibility to discipline members of any profession" as two
categories of agencies that may compile information subject to the exemption. RCW
42.56.240(1). The Newman categorical exemption concerns the first category of
investigative agencies, whereas the internal investigation of Officer Waters falls into the
second category. The clear separation of these two types of agency documents and the
difference in function supports their separation for purposes of categorical application of
the exemption.
Finally, in the context of a criminal investigation such as in Newman, the public
would be better served by keeping the requested information confidential so that the
police could finish their investigation and catch the perpetrator. However, the public
would be better served by disclosure of the internal investigation information because the
public has an interest in knowing about claimed misconduct at public agencies. In fact,
this is exactly the type of disclosure envisioned by the PRA's mandate for broad public
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access to information to "maintain control over the instruments that they have created."
RCW 42.56.030.
As with the SPD criminal investigation material, we do not hold that the effective
law enforcement exemption can never prevent disclosure of internal investigation
materials. The statute clearly covers internal investigations, and this court has held
certain internal materials exempt from disclosure. We simply decline to extend the
categorical application of the exemption derived in Newman in the context of a criminal
investigation to this type of internal investigation material. Instead, when an agency
withholds internal investigation information citing the effective law enforcement
exemption, the burden will rest with the agency to prove that specific portions of the
internal file are essential to effective law enforcement.
2. The Court of Appeals erred by remanding to the trial court for
reconsideration of whether the effective law enforcement exemption
allowed the SPD to withhold witness identities from production
When the SPD eventually produced relevant documents to Sargent in March 2010,
it redacted all names of witnesses from those documents, citing RCW 42.56.240(2)
(exempting from disclosure witnesses of a crime "if disclosure would endanger any
person's life, physical safety, or property" or if the witness requests nondisclosure). The
SPD later argued before the trial court that the witness identities were exempt because
disclosure would have a chilling effect on other witnesses, thus impairing effective law
enforcement under RCW 42.56.240(1). The trial court held that the SPD failed to prove
that witnesses' lives, physical safety, or property were at risk or that any witness
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requested nondisclosure. The trial court therefore ordered the SPD to reproduce these
documents in unredacted form. The Court of Appeals reversed, reasoning that although
the SPD made no showing that RCW 42.56.240(2) applied, it may have reasonably relied
on case law suggesting that the RCW 42.56.240(1) exemption for effective law
enforcement would apply categorically to witness identities. Sargent, 167 Wash. App. at
16-18. The court therefore remanded to give the SPD an opportunity to argue why the
effective law enforcement exemption should apply to the witness identities at issue. I d. at
18. We reverse the Court of Appeals on this issue and reinstate the trial court's ruling.
The PRA protects witness identities in two provisions. The effective law
enforcement exemption in RCW 42.56.240(1) can prevent disclosure due to the potential
chilling effect on other witnesses who may be discouraged from coming forward if they
know that their identity will be disclosed. Additionally, RCW 42.56.240(2) provides
separate protection by exempting witness identities where "disclosure would endanger
any person's life, physical safety, or property" or where the witness requests
nondisclosure.
The burden is on the agency to establish that nondisclosure is in accordance with
one ofthese PRA exemptions. RCW 42.56.550(1) ("The burden of proof shall be on the
agency to establish that refusal to permit public inspection and copying is in accordance
with a statute that exempts or prohibits disclosure in whole or in part of specific
information or records."). The SPD had the burden to show that nondisclosure was
essential to effective law enforcement under RCW 42.56.240(1) or that disclosure would
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No. 87417-4
endanger a person's life, physical safety, or property, or that a witness had requested
nondisclosure under RCW 42.56.240(2).
At the show cause hearing, the SPD clearly understood that it needed to come
forward with specific evidence of chilled witnesses or other evidence of impeded law
enforcement. The SPD acknowledged that after Sargent's February requests it "no longer
asserted the categorical exemption" but instead redacted witness names under the "central
effective law enforcement exemption which continues to exist after the case is not open
and active." Verbatim Report of Proceeding (VRP) at 12. But, as both the trial court and
Court of Appeals recognized, the SPD made no actual showing that redaction of witness
names was essential to effective law enforcement in this particular case. A general
contention of chilling future witnesses is not enough to exempt disclosure. A remand to
give the SPD another opportunity to make the showing required to trigger the exemption
is unwarranted.
Even if the SPD did believe the exemption applied categorically, remand would
still be inappropriate. The SPD contends that remanding for additional fact- finding here
would follow long-standing precedent from this court. However, the cases SPD relies on
are distinguishable. In each case where remand was ordered, the trial court had not yet
addressed whether an exemption applied. O'Neill v. City of Shoreline, 170 Wash. 2d 138,
154, 240 P .3d 1149 (20 10); Concerned Ratepayers Ass 'n v. Pub. Uti!. Dist. No. 1 of
Clark County, 138 Wash. 2d 950, 964, 983 P.2d 635 (1999). For example, in Concerned
Ratepayers, the trial court determined a technical specifications document was not
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subject to disclosure under the PRA because a public agency's review, evaluation, and
reference to the document did not constitute "use" under the PRA. 138 Wash. 2d at 957.
This court disagreed and held the document was a public record. I d. at 963. Although
the agency did not argue the document was exempt upon the initial disclosure request nor
directly argue the exemption before this court, we remanded for the trial court to make a
determination of whether the specifications were exempt as research data under former
RCW 42.17.31 0( 1)(h) (2005), recodified as RCW 42.56.21 0, as this determination was
not previously made. Id. at 958. Concerned Ratepayers differs from the present case
because here, the trial court did reach the question of whether the law enforcement
exemption applied.
Similarly in 0 'Neill, this court remanded to the trial court to determine whether
the PRA was violated by nondisclosure of metadata from multiple e-mails. 170 Wn.2d cit
151. In 0 'Neill, the city provided the metadata from several of thee-mails, but did not
provide the metadata from one of thee-mails that was destroyed. Id. at 144. The
individual brought suit under the PRA, but the trial court dismissed the action. Id. The
Court of Appeals found that metadata must be disclosed under the PRA as a public
record, which we affirmed. Id. at 148. We remanded for the trial court to consider
whether the deletion of metadata violated the PRA, based upon the outcome of a
subsequent search of the hard drive. I d. at 151. In contrast, here the SPD plainly failed
to offer any evidence that disclosure ofwitness identities would endanger any of the
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No. 87417-4
witnesses. Remand is not appropriate where the trial court properly considered SPD's
arguments and SPD simply failed to meet its burden.
3. The trial court abused its discretion by failing to consider all of the
Yousoujian 2010 factors in its assignment of a penalty
The PRA requires imposition of per diem penalties up to $100 per day whenever a
violation is found. RCW 42.56.550( 4). Assignment of a penalty within this range is
subject to the "discretion of the court." Id. Accordingly, we review for abuse of
discretion. Yousoujian v. Office of King County Exec., 152 Wash. 2d 421, 430-31, 98 P.3d
463 (2004) (Yousoujian 2004). Discretion is abused where the decision is "manifestly
unreasonable" or based on "untenable" reasoning. Yousoujian v. Office of Ron Sims, 168
Wn.2d 444,458-59,229 P.3d 735 (2010) (Yousoujian 2010).
In Yousoujian 2010, this court established a framework to guide trial courts'
determination of penalties within the range provided under the PRA. The court identified
seven mitigating factors and nine aggravating factors to aide assessment of agency
culpability. Id. at 460, 467-68. These mitigating factors may justify a decrease in the
penalty:
(1) a lack of clarity in the PRA request; (2) the agency's prompt response or
legitimate follow-up inquiry for clarification; (3) the agency's good faith,
honest, timely, and strict compliance with all PRA procedural requirements
and exceptions; (4) proper training and supervision of the agency's
personnel; (5) the reasonableness of any explanation for noncompliance by
the agency; (6) the helpfulness of the agency to the requestor; and (7) the
existence of agency systems to track and retrieve public records.
Id. at 467 (footnotes and citations omitted). These aggravating factors may justify an
increase in the assigned penalty:
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No. 87417-4
( 1) a delayed response by the agency, especially in circumstances making
time ofthe essence; (2) lack of strict compliance by the agency with all the
PRA procedural requirements and exceptions; (3) lack of proper training
and supervision ofthe agency's personnel; (4) unreasonableness of any
explanation for noncompliance by the agency; (5) negligent, reckless,
wanton, bad faith, or intentional noncompliance with the PRA by the
agency; (6) agency dishonesty; (7) the public importance of the issue to
which the request is related, where the importance was foreseeable to the
agency; (8) any actual personal economic loss to the requestor resulting
from the agency's misconduct, where the loss was foreseeable to the
agency; and (9) a penalty amount necessary to deter future misconduct by
the agency considering the size of the agency and the facts of the case.
!d. at 467-68 (footnotes and citations omitted). The court cautioned that no one factor is
controlling and sometimes multiple factors will not be relevant. !d. at 468.
Here, the trial court failed to apply these factors even though we decided
Yousoufian 2010 almost five months before the show cause hearing. The trial court did
not mention Yousoufian 2010 or engage in any sort of balancing analysis, but instead
focused exclusively on whether the SPD acted in bad faith to calculate a penalty.
Although bad faith is an important consideration under Yousoufian 2010, it cannot
be the only consideration. Yousoufian 2010 does cite bad faith, both as a historical basis
for awarding high penalties and as a newly established aggravating factor. 168 Wash. 2d at
460, 468. But the Yousoufian 2010 court also explicitly warned that "a strict and singular
emphasis on good faith or bad faith is inadequate to fully consider a PRA penalty
determination." !d. at 460-61. Although not all factors may apply in every case, "no one
factor should control" and the trial court here abused its discretion by not conducting its
analysis within the Yousoufian 2010 framework. !d. at 468.
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In this situation, remand is the appropriate remedy. The Court of Appeals ordered
remand in an almost identical situation in Zink v. City of Mesa, 162 Wash. App. 688, 256
P.3d 384 (2011). There, the decision in Yousoufian 2010 was issued during the pendency
of the appeal and the court remanded so the trial court could engage in the appropriate
analysis. 168 Wash. 2d at 705-06. Further, in Sanders v. State, 169 Wash. 2d 827, 859, 240
P.3d 120 (2010), this court recognized that remand is generally the appropriate remedy
but affirmed the trial court award in this particular instance because the trial court's
analysis "anticipated" the not-yet-issued Yousoufian 2010 analysis. Similarly, the
Yousoufian 2010 decision itself recognized that "the usual procedure is to remand to the
trial court for imposition of the appropriate penalty." 168 Wash. 2d at 468. It was only due
to the "unique circumstances and procedural history" of the Yousozifian 2 010 case that
this court set the penalty amount itself. !d. at 468-69. Here the trial court did not
consider the multifactor framework even though the show cause hearing occurred well
after the issuance of the Yousoufian 2010 decision. We therefore remand for the trial
court to consider all mitigating and aggravating factors outlined in Yousoufian 2010.
4. The SPD properly withheld Sargent's nonconviction records under the CRP A
When the SPD produced a second batch of relevant documents to Sargent in April
2010, it withheld Sargent's nonconviction criminal history. The SPD did not
immediately explain this withholding. The trial court decision ordered release of some
nonconviction documents-Sargent's booking information. VRP at 26-27 ("I don't
know of anything in the law that forbids the release of booking information to the very
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person who was booked. And none has been cited to me."). The SPD later cited the
CRPA, chapter 10.97 RCW, as justifying its withholding the information. Sargent, 167
Wash. App. at 8 & n.l; Appellant's Opening Br. at 32-37. The Court of Appeals held that
the SPD properly withheld the records because the CRP A permitted disclosure only for
the purposes of challenging or correcting the information contained in the records and
Sargent made no such allegation. Sargent, 167 Wash. App. at 20-21. Sargent took issue
with this holding in his petition for review and his supplemental brief, arguing that this
court's decision in Bainbridge Island Police Guild v. City of Puyallup, 172 Wash. 2d 398,
259 P.3d 190 (2011) mandates disclosure. Pet. for Review at 17; Suppl. Br. ofPet'r
Sargent at 17-18.
At the time of the show cause hearing, the CRPA provided that "[n]o person shall
be allowed to retain or mechanically reproduce any nonconviction data except for the
purpose of challenge or correction when the person who is the subject of the record
asserts the belief in writing that the information regarding such person is inaccurate or
incomplete." Former RCW 10.97.080 (2010). 1 "Nonconviction data," furthermore, is
defined as "all criminal history record information relating to an incident which has not
led to a conviction or other disposition adverse to the subject, and for which proceedings
are no longer actively pending." RCW 10.97.030(2). The CRPA by its terms clearly
prohibits reproduction of any nonconviction data unless the subject of the record is
requesting a copy in order to contest the accuracy or completeness of the documents.
1
RCW 10.97.080 was amended to alter this provision. See LAWS OF 2012, ch. 125, § 3.
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No. 87417-4
As the Court of Appeals explained, Sargent misinterprets our holding in
Bainbridge Island. The Bainbridge Island court held that when a party requests a mix of
data with both nonconviction and other information, the nonconviction data should be
redacted and the remainder produced. 172 Wash. 2d at 421-24. But Sargent requested
materials, like his booking history documentation, that were composed exclusively of
nonconviction data, and he did not assert in writing any inaccuracies or oversights.
Therefore, the SPD properly withheld the documents in their entirety because the CRP A
prohibits disclosure. Accordingly, we affirm the Court of Appeals on this issue. 2
5. Sargent's motion to modify the clerk's notation ruling is denied
After the Court of Appeals issued its decision, Sargent filed two motions to
present additional evidence under RAP 9 .11. The Court of Appeals denied these
motions, and Sargent did not assign error to this issue in his petition for review submitted
to this court. When Sargent raised the issue for the first time in his supplemental brief
filed after we granted review, the SPD filed a motion to strike the portions of Sargent's
brief that dealt with the RAP 9.11 denial. This court granted SPD's motion to strike and
Sargent moved to modify this ruling. We passed consideration of Sargent's motion to
modify to the merits and considered the motion at the oral argument already scheduled
for this case. We now deny Sargent's motion to modify.
RAP 13.7 (b) provides, "If the Supreme Court accepts review of a Court of
Appeals decision, the Supreme Court will review only the questions raised in the ...
2
Notably, the CRP A has since been amended to allow the subject of the record to obtain a copy
of their nonconviction data on file. LAWS OF 2012, ch. 125, § 3. If Sargent still desires this
information, the CRP A would no longer block his request.
24
No. 87417-4
petition for review and the answer." Sargent did not assign error to the Court of Appeals'
denial of his motions to present additional evidence in his petition for review. SPD's
motion to strike the portions of his supplemental brief that raised the issue for the first
time was properly granted, and we accordingly deny his motion to modify our ruling that
so held.
6. Sargent is entitled to attorney's fees to the extent that he prevailed on appeal
Sargent requested attorney's fees on appeal at the Court of Appeals under RAP
18.1 and RCW 42.56.550(4). A request for fees on appeal made at the Court of Appeals
will be treated as a continuing request in this court. RAP 18.1. RCW 42.56.550(4)
mandates provision of "all costs, including reasonable attorney fees, incurred in
connection with such legal action" to the party who prevails against an agency in a PRA
claim. This language includes attorney's fees incurred on appeal and hence Sargent is
entitled to an award of attorney's fees to the extent that he prevailed here. The parties are
directed to submit an affidavit and any objections to this court for a determination of the
appropriate award. RAP 18.1(d), (e), (±). 3
CONCLUSION
We hold that the effective law enforcement exemption ceases to apply
categorically to investigative records once the case is first referred to a prosecutor for a
charging decision. We also hold that the SPD violated the PRA by withholding records
3
The issue of whether Sargent's 2010 written and oral requests for clarification constituted new
PRA requests is of no consequence given our holding that the SPD was required to respond to
Sargent's formal PRA requests in the first instance. Sargent's requests for clarification in 2010
did not affect his right to disclosure, and we see no need to resolve this dispute.
25
No. 87417-4
of an internal disciplinary investigation. The effective law enforcement exemption does
not apply categorically to this type of material. We further hold that the SPD had its
chance to demonstrate a proper reason for withholding witness identities at the show
cause hearing and remand is therefore inappropriate. Finally, we hold that the SPD
properly withheld Sargent's nonconviction data under the CRPA and that remand for
reconsideration of penalties in light of Yousoufian 2010 is necessary. Accordingly we
reverse in part, affirm in part, and remand to the trial court for reconsideration of
penalties. Sargent is entitled to attorney's fees to the extent that he prevailed on appeal.
26
No. 87417-4
WE CONCUR:
27
Sargent v. Seattle Police Department, No. 87417-4
Dissent by J.M. Johnson, J.
No. 87417-4
J.M. JOHNSON, J. (dissenting)-The majority's eroswn of the
effective law enforcement exemption to the Public Records Act (PRA), 1
chapter 42.56 RCW, threatens the efficacy of open and active criminal
investigations. Rather than focusing limited resources and manpower on
protecting the public, law enforcement must now divert efforts toward
justifying the exemption of sensitive records in ongoing investigations. This
flies in the face of Newman/ which explicated the PRA exemption in RCW
42.56.240(1) and expressly recognized that law enforcement agencies-not
courts-are best suited to decide which information could compromise an
investigation if released too early. Because the majority is most certainly
out of step with Newman's analysis of the PRA and Newman's progeny, I
dissent.
1
RCW 42.56.240(1).
2
Newman v. King County, 133 Wash. 2d 565, 947 P.2d 712 (1997).
Sargent v. Seattle Police Department, No. 87417-4
The majority's application of Newman undermines a common law
enforcement investigation procedure that is a necessary tool for the
enforcement of our criminal code. When a criminal suspect is arrested
without a warrant, the charges must be filed with the prosecutor's office
within 48 hours. See CrR 3 .2.1 (requiring a judicial determination of
probable cause within 48 hours after arrest, unless probable cause was
determined prior to arrest). This practice is known as "rush filing." In such
situations, the case is referred to prosecutors who may prosecute or initially
decline to prosecute while returning the case to law enforcement for further
investigation. See Clerk's Papers (CP) at 141-42.
The main issue before us is whether the investigative records
exemption to the PRA permanently expires when the case is first referred to
a prosecutor or if the exemption resumes in the event that the prosecutor
requests more investigation. The majority holds that even where the initial
investigation must occur within 48 hours, the categorical exemption for open
and active investigations expires once a case is referred to a prosecutor for a
charging decision. The majority applies this rule even where, as here, the
prosecutor sends the case back to law enforcement for further investigation
2
Sargent v. Seattle Police Department, No. 87417-4
before an informed charging decision can be made. This hinders the use of
one effective law enforcement procedure.
It is arbitrary to draw the line at the first referral to the prosecutor
when the substance of the investigation cannot possibly be done within 48
hours. It is far more sensible to draw the line at the end of the executive
branch's involvement with the case, when the investigation is truly closed.
See Cowles Publ'g Co. v. Spokane Police Dep't, 139 Wash. 2d 472, 483-84,
987 P.2d 620 (1999) (Talmadge, J., concurring). That is likely what the
legislature intended.
I would hold that Newman's categorical investigative records
exemption to the PRA does not permanently expire once the case is first
referred to a prosecutor. Rather, the exemption may renew in the event that
the prosecutor requests further investigation from law enforcement. The
Seattle Police Department (SPD) did not violate the PRA by withholding
records of an investigation referred to a prosecutor's office for an immediate
charging decision because the exemption was renewed when the prosecutor
requested additional investigation. I would further hold that the
investigative records exemption to the PRA applies to law enforcement
internal disciplinary investigations. The majority's holdings are based on
3
Sargent v. Seattle Police Department, No. 87417-4
improperly narrow readings of Newman and Cowles. Limiting the
categorical exemption in such a way fails to account for the necessities of
effective law enforcement practices.
ANALYSIS
A. Newman's Categorical Investigative Records Exemption Under RCW
42.56.240(1) May Renew in the Event That the Prosecutor Requests
Further Investigation
Pursuant to RCW 42.56.240(1), certain public records are exempt
from production when it would hinder effective law enforcement or
encroach on privacy:
The following investigative, law enforcement, and crime
victim information is exempt from public inspection and
copying under this chapter:
( 1) 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
pnvacy.
In Newman, 133 Wash. 2d 565, this court considered whether documents
within an open and active criminal investigation file are categorically
exempt from production under the PRA as essential to effective law
enforcement. Newman involved a journalist's public records requests for
4
Sargent v. Seattle Police Department, No. 87417-4
files in the ongoing police investigation into the 1969 murder of civil rights
leader Edwin Pratt. ld. at 568. We held that
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.
ld. at 574. We emphasized the necessity of a categorical exemption because
"[r]equiring a law enforcement agency to segregate documents before a case
is solved could result in the disclosure of sensitive information." ld. We
noted that "[t]his exemption allows the law enforcement agency, not the
courts, to determine what information, if any, is essential to solve a case."
I d.
Today's majority holds that under the limitations of Newman imposed
by Cowles, Newman's broad categorical exemption must end when police
first refer an investigation to a prosecutor for a charging decision. This
unnecessarily rigid reading of Cowles fails to account for the realities of law
enforcement investigations and will most certainly operate to harm sensitive
investigations. These costs will be imposed without commensurate benefits
to government accountability. I am not advocating for a rule under which
the records are forever shielded from public scrutiny; such a rule is
5
Sargent v. Seattle Police Department, No. 87417-4
unsupported by language in the PRA. It is not a matter of if the records may
be disclosed to the public, but when.
In Cowles, a newspaper publisher brought suit to compel production
of a police incident report and booking photograph after a suspect had been
arrested and the case was referred to a prosecutor for a charging decision.
We distinguished the facts from Newman on the basis that the investigation
in Cowles was no longer open and active. Cowles, 139 Wash. 2d at 477-78.
We noted that when a suspect is arrested and the case is referred to a
prosecutor for a charging decision, "the risk of inadvertently disclosing
sensitive information that might impede apprehension of the perpetrator no
longer exists." !d. We ultimately held that "in cases where the suspect has
been arrested and the matter referred to the prosecutor, any potential danger
to effective law enforcement is not such as to warrant categorical
nondisclosure of all records in the police investigative file." !d. at 479.
After referral, the exemption must be justified on a case-by-case basis. !d. at
479-80.
This case, which involved "rush filing" and a request to · law
enforcement for further investigation, is distinguishable from Cowles in
which we held that Newman's categorical exemption expires when a suspect
6
Sargent v. Seattle Police Department, No. 87417-4
is arrested and the case is referred to the prosecutor. Cowles, 139 Wash. 2d at
479. In Cowles, the subject of the PRA request was arrested and the
Spokane Police Department referred the case to the prosecutor the same day,
requesting that charges be filed. Id. at 474-75. The investigation was no
longer open and active, as the case had been referred to the prosecutor for a
final charging decision. No further investigation was required.
Here, the case was referred to prosecutors twice. The investigation
remained open and active after first referral to the prosecutor. Given the
complicated set of circumstances surrounding this case, law enforcement
could not possibly visit the location of the incident, interview all the
witnesses, and take statements from both parties within a 48 hour period.
Further investigation was necessary. The case was referred to prosecutors a
second time after a thorough investigation, at which time prosecutors
declined to file charges. Under this set of facts, it would be contrary to
Newman and Cowles to hold that the categorical statutory exemption for ·
information essential to effective law enforcement, RCW 42.56.240(1 ),
expires upon the initial referral to prosecutors.
The concurring opinion in Cowles foresaw the need for the
progression in our case law that we face today:
7
Sargent v. Seattle Police Department, No. 87417-4
[S]imply submitting an investigation to a prosecutor for a
charging decision does not always end the investigation. The
prosecuting authority, whether a city attorney's office or a
county prosecuting attorney's office, must then decide whether
there is a sufficient basis to file criminal charges. If the
prosecuting authority determines there is an insufficient factual
or legal basis to file charges, the case is clearly neither solved
nor closed. . . . At that point, further investigation is required
and the whole purpose for the exemption discussed in Newman
applies.
139 Wash. 2d at 484 (Talmadge, J., concurring). Justice Talmadge's
concurrence presciently warned the court that the controversy before us
could one day arise. Nonetheless, the facts in Cowles were sufficiently
distinct from the concerns raised by Justice Talmadge to warrant leaving the
issue open for another day. That day has come, and unfortunately, the
majority opinion has failed to recognize Cowles' need to protect "effective
law enforcement" procedures.
As Justice Talmadge pointed out in his Cowles concurrence, "[t]he
appropriate line of demarcation for determining when a case is closed or
solved is the point at which the executive branch of government has
essentially concluded its involvement with the case." Id. at 483-84. I
emphatically agree. Any other reading of Newman and Cowles fails to
account for the gap created between the two cases. Not all law enforcement
practices fit neatly in one category or the other; accordingly, Newman and its
8
Sargent v. Seattle Police Department, No. 87417-4
progeny must be read flexibly to account for varying circumstances arising
from law enforcement investigatory practices.
Furthermore, holding that the exemption must exp1re upon first
referral to a prosecutor's office would lead to perverse and potentially
devastating consequences. Under such a scenario, a criminal could be
arrested and released, then submit a PRA request in order to gather
information for use in destroying evidence or coercing witnesses. This
certainly would not support the balance between open government and
upholding the integrity of police investigations struck by the PRA and our
case law.
As Justice Talmadge noted in his Cowles concurrence:
The better point at which to say the case is "closed" is
when the prosecuting authority has determined to file charges,
as our earlier cases indicate. At that time, the case is essentially
solved or closed from the perspective of the executive branch-
the law enforcement agencies and the prosecuting authorities.
The case is then within the province of the judicial branch of
government, and it is no longer appropriate for the statutory
exemption to apply. The broad policy of public disclosure ...
must then control.
Cowles, 139 Wash. 2d at 484-85. I would hold that it is essential to effective
law enforcement that investigative records remain categorically exempt in
this limited circumstance where the case has been declined for prosecution,
9
Sargent v. Seattle Police Department, No. 87417-4
the investigation is open and active, and enforcement proceedings are
contemplated when the PRA request is received. The Court of Appeals
properly rejected Evan Sargent's argument that SPD's "rush filing" with the
King County prosecuting attorney tenninated the criminal investigation for
the purposes of the "effective law enforcement" exemption of RCW
42.56.240(1 ).
B. Newman's Categorical Investigative Records Exemption Applies to
Open and Active Internal Disciplinary Investigations
On February 5, 2010, Sargent made his only request for the internal
disciplinary investigation file of Officer Waters. CP at 41-42. The files
were withheld as exempt and the investigation remained open and active
until April 30, 2010. CP at 145. The trial court did not require the
production of the internal disciplinary file. CP at 365. The Court of
Appeals affirmed, recognizing that Newman's "reasoning applies equally to
disciplinary investigations." Sargent v. Seattle Police Dep 't, 167 Wash. App.
1, 22, 260 P.3d 1006 (2011).
I agree. In Koenig v. Thurston County, 175 Wash. 2d 837, 843, 287 P.3d
523 (2012) (quoting Columbian Publ'g Co. v. City of Vancouver, 36 Wn.
App. 25, 31, 671 P.2d 280 (1983)), we explained that to fall under the
Newman exemption, "[t]he investigation must be 'one designed to ferret out
10
Sargent v. Seattle Police Department, No. 87417-4
criminal activity or to shed light on some other allegation of malfeasance."'
Internal disciplinary investigations into police misconduct are most certainly
designed to accomplish these goals. The Newman exemption for open and
active investigations should apply to internal disciplinary investigations such
as this one. Because Sargent never resubmitted a PRA request after the
investigation was closed on April 30, the SPD was under no obligation to
produce the internal disciplinary investigative records regarding Officer
Waters.
CONCLUSION
I would affirm the Court of Appeals' holding that the SPD did not
violate the PRA by withholding records of a criminal investigation referred
to a prosecutor's office for a potential "rush filing" charging decision, but
returned by the prosecutor for more investigation before filing. Investigative
records should be categorically exempt from production where the case has
been declined for prosecution, the investigation is open and active, and
enforcement proceedings are contemplated when the request is received. I
would further affirm the Court of Appeals' holding that RCW 42.56.240, the
investigative records exemption to the PRA, applies to law enforcement
internal disciplinary investigations. Newman, as limited by Cowles, strikes a
11
Sargent v. Seattle Police Department, No. 87417-4
balance between promoting government accountability and furthering
sensitive law enforcement investigations. I fear that today's majority
unsettles this balance in such a way that puts the public at risk through
compromised law enforcement investigations.
12
Sargent v. Seattle Police Department, No. 87417-4
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