Jane Doe 1 v. WA State Community College District 17 ( 2019 )

FILED
JUNE 18, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JANE DOE #1, a single woman, JANE )
DOES #2-9, ) No. 36030-0-III
)
Respondents, )
)
v. )
) UNPUBLISHED OPINION
WASHINGTON STATE COMMUNITY )
COLLEGE DISTRICT 17, )
COMMUNITY COLLEGES OF )
SPOKANE; an agency of the STATE OF )
WASHINGTON, )
)
Respondents, )
)
COWLES COMPANY, a Washington )
Corporation, )
)
Appellant, )
)
SPOKANE TELEVISION, INC., a )
Washington Corporation; and INLAND )
PUBLICATIONS, INC., a Washington )
Corporation, )
)
Defendants. )
FEARING, J. — Based on the Public Records Act’s broad mandate of liberal
disclosure of government agency records, we reverse the superior court’s decision
No. 36030-0-III
Jane Doe #1 v. Wash. State Comm. College
ordering the redaction of names and other identifying information of victims and
witnesses found in investigative records held by the Spokane Falls Community College
following the resignation of the college’s acting president surrounding allegations of
sexual misconduct. We hold that RCW 42.56.230(3), a subsection of the Public Records
Act, does not shield the identifiers from release since no evidence shows that the type of
records were such that the community college would hold the records in files maintained
for the benefit of employees.
FACTS
Appellant Cowles Publishing Company publishes the Spokesman-Review.
Respondent Washington State Community College District 17, a community college
district organized under RCW 28B.50.040, operates two colleges: Spokane Community
College and Spokane Falls Community College. WAC 132Q-276-040. Respondents
Jane Does #1 through 10 are the targets of the subject Public Records Act request sent by
the Spokesman-Review to Spokane Falls Community College. The Spokesman-Review
submitted its request as a result of alleged sexual misconduct of Spokane Falls
Community College acting president Darren Pitcher, who served in this position in 2017
and 2018.
Jane Doe #1 filed an anonymous complaint about Darren Pitcher with Spokane
Falls Community College’s human resources office in 2016, so we assume Pitcher served
in another position with the community college at an earlier date. When the office
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withheld action in response, Jane Doe #1 broadened her audience and filed an anonymous
complaint with community college officials, her faculty union, and the State Board of
Community and Technical Colleges. The American Association of Higher Education
president then explained to Doe #1 that the district maintained a policy not to investigate
anonymous complaints and that she would need to file a formal complaint if she wanted
the allegations investigated. We do not know why the American Association of Higher
Education gave advice about the community college’s policies.
On January 16, 2018, Jane Doe #1 filed a second complaint of sexual harassment
and retaliation against Darren Pitcher with Spokane Falls Community College’s human
resources office. Doe #1 identified herself in this second complaint. The complaint
detailed Pitcher’s purported inappropriate behavior and the effect of the behavior on Doe
#1. The human resources office interviewed Jane Doe #1. Doe #1 recounted Pitcher
exposing his genitals to her, grooming her for a quid pro quo sexual encounter, and
engaging in sexual intercourse with her. Doe #1 further informed the human resources
office that Pitcher engaged in or attempted to engage in sexual relationships with other
subordinates, who either gained promotion or were fired or demoted when rebuffing
sexual advances.
Spokane Falls Community College investigated Jane Doe #1’s allegations, and the
investigation included interviews of Jane Does #2-9. Jane Doe #9 reported that Darren
Pitcher sent instant messenger messages to her of a sexual nature. The messages
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described and commented on Doe #9’s genital and breasts. Jane Does #2-8 and 10 did
not assert that Pitcher subjected them to harassment or misconduct, but the eight women
disclosed knowledge of misbehavior toward others.
On February 26, 2018, Darren Pitcher resigned as acting president. The
Spokesman-Review then made the following public record request to Spokane Falls
Community College:
Please provide all records and correspondence related to claims of
misconduct, including claims of sexual harassment, involving Darren
Pitcher, from before and during his time as acting president of Spokane
Falls Community College.
Please also provide all records and correspondence related to
Community Colleges of Spokane’s investigation into such allegations.
Correspondence should include emails to and from Chancellor Christine
Johnson regarding this matter.
Please also provide copies of all text messages that Pitcher
exchanged with Kari Collen. These text messages are subject to public
disclosure if Pitcher used a CCS-owned cell phone or received a stipend for
work-related cell phone use.
Lastly, please provide a copy of Pitcher’s resignation letter.
Clerk’s Papers at 73.
The Spokesman-Review’s request covered documents that contained the names
and other identifiers of Jane Does #1-9. The Spokane Falls Community College human
resources office contacted the Does and warned that the records would be disclosed on
March 20, 2018. Jane Does #1-9 respectively replied that, had each known her name
would be disclosed, she would not have spoken to investigators.
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PROCEDURE
On March 16, 2018, before Spokane Falls Community College released any
documents, Jane Does #1-9 filed a complaint, motion for temporary restraining order, and
motion for permanent injunction. The Does did not challenge the underlying disclosure
of the documents, but rather sought to enjoin the release of their names and identifiers
contained within the documents. In other words, the Jane Does asked that the court direct
the community college to excise their names and other identifying data from the records.
On March 20, 2018, the trial court granted a temporary restraining order
preventing Spokane Falls Community College from disclosing the names and identifiers
of the Does. The court ordered that the documents be delivered to it for an in camera
review. On March 21, 2018, the Does filed an amended complaint for injunction that
added Jane Doe #10 as a plaintiff.
Spokane Falls Community College released three batches of documents: (1)
working documents, (2) investigation reports and exhibits, and (3) e-mail. The “working
documents” include over six hundred pages of interview notes, complaints, investigation
guidelines, interview timelines, and instant messenger messages.
The investigation file and exhibits contain more than three hundred pages of
documents and include an investigation report, e-mails, written statements, instant
messenger transcripts, administrative procedures, college policies, and other information.
None of the records in this category of documents suggest they arose from any personnel
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file. The produced records included four hundred pages of e-mail correspondence
between and among employees of the community college. The community college
maintains the e-mail in e-mail programs and e-mail servers, not in any employment file.
On March 30, 2018, the trial court granted a permanent injunction that enjoins
Spokane Falls Community College from disclosing the names and identifiers of Jane
Does #1-10 in any response to the Spokesman-Review’s requests or in a response to
future requests. The court categorized the records as exempt personal information under
RCW 42.56.230(3) and declared that no legitimate public interest in the names and
identities of the Does existed.
LAW AND ANALYSIS
Washington’s Public Records Act requires state agencies to produce all public
records on request unless a record falls within an exemption. Progressive Animal
Welfare Society v. University of Washington, 125 Wash. 2d 243, 250, 884 P.2d 592 (1994).
The act mandates broad disclosure of public records in order to hold public officials and
institutions accountable to the people. Resident Action Council v. Seattle Housing
Authority, 177 Wash. 2d 417, 431, 327 P.3d 600 (2013); Progressive Animal Welfare
Society v. University of Washington, 125 Wash. 2d at 251 (1994). The people do not give
public servants the right to decide what is good and what is not good for the people to
know. RCW 42.56.030. Free and open examination of public records serves the public
interest, even though such examination causes inconvenience or embarrassment to public
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officials or others. RCW 42.56.550(3). The public has a right to know who their public
employees are and when those employees are not performing their duties. Predisik v.
Spokane School District No. 81, 182 Wash. 2d 896, 908, 346 P.3d 737 (2015).
Because of the broad mandate behind the Public Records Act, the act’s disclosure
provisions must be construed liberally and exemptions construed narrowly. West v. Port
of Olympia, 183 Wash. App. 306, 311, 333 P.3d 488 (2014). Disclosure is limited only by
the precise, specific, and limited exemptions that the act provides. Lyft, Inc. v. City of
Seattle, 190 Wash. 2d 769, 778, 418 P.3d 102 (2018). The party seeking to avoid disclosure
bears the burden of proving an exemption applies. Ameriquest Mortgage Co. v. Office of
Attorney General, 177 Wash. 2d 467, 486-87, 300 P.3d 799 (2013). This allocation of the
burden of proof looms important in this appeal.
In addition to seeking redaction of their names from the community college
records, the Jane Does seek the obscuration of their respective titles, positions held, and,
in some instances, the departments in which one or more works. They refer to the
information collectively as “identifiers.” Jane Does Nos. 1-10 rely on RCW 42.56.230(3)
for redaction. The statute declares, in relevant part:
The following personal information is exempt from public
inspection and copying under this chapter:
....
(3) Personal information in files maintained for employees . . . of
any public agency to the extent that disclosure would violate their right to
privacy.
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We refer to the exemption as the “personal information exception.”
We parse RCW 42.56.230(3) to extract three discrete elements: (1) the records
contain personal information, (2) the information lies in a file maintained for employees,
and (3) disclosure of the personal information would violate one’s right to privacy. The
Spokesman-Review contends that the redacted information does not fulfill any of the three
elements. We conclude that the information sought to be protected does not constitute
information found in a file maintained for employees. Therefore, we do not address
whether the information constitutes “personal information” or whether disclosure would
violate the Jane Does’ right to privacy.
The Public Records Act does not define “personal information.” In Cowles
Publishing Co. v. State Patrol, 44 Wash. App. 882, 890-91, 724 P.2d 379 (1986), rev’d on
other grounds, 109 Wash. 2d 712, 748 P.2d 597 (1988) (quoting Turner v. Reed, 22 Ore.
App. 177, 538 P.2d 373 (1975)), this court borrowed an Oregon court’s definition for
“personal information” as “‘normally not [to] be shared with strangers.’” Our state high
court later more broadly defined the term as “‘information relating to or affecting a
particular individual, information associated with private concerns, or information that is
not public or general.’” Bainbridge Island Police Guild v. City of Puyallup, 172 Wash. 2d
398, 412, 259 P.3d 190 (2011) (quoting Bellevue John Does 1-11 v. Bellevue School
District #405, 164 Wash. 2d 199, 211, 189 P.3d 139 (2008)). The Bellevue John Does
definition overlaps in part our court’s definition in Cowles Publishing, but significantly
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broadens the definition by including identifying information regardless of whether a
reasonable person would seek to keep the data private. We avoid a determination of
whether the Spokesman Review’s request seeks personal information.
Regardless of whether the opponent of disclosure seeks to shield personal
information, the information must be contained within files that are maintained for
employees. RCW 42.56.230(3). In Cowles Publishing Co. v. State Patrol, 44 Wash. App.
882 (1986), the Spokesman-Review sought release of Spokane Police Department internal
affairs investigation reports. The police department expressed willingness to release the
records but only after redacting the names of officers. The department asserted that any
file relating to a particular officer is “maintained” for that officer within the meaning of
RCW 42.56.230(3). We deemed the contention overbroad and ordered release of the
officers’ names. “That provision was intended to shield only that highly personal
information often contained in employment and other personnel files.” Cowles
Publishing Co. v. State Patrol, 44 Wash. App. at 891 (emphasis added). We listed
examples of such information as an employee’s union dues, charitable contributions,
deferred compensation, medical records, disabilities, employment performance
evaluations, reasons for leaving employment, and sensitive records relating to health or
family information necessary for calculating health plans, job benefits, and taxes.
The Supreme Court reversed this court in Cowles Publishing Co. v. State Patrol,
109 Wash. 2d 712 (1988), but on a different ground. The high court agreed that the
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personal information exemption did not shield disclosure of the names, but that former
RCW 42.17.310(1)(b) recodified now as RCW 42.56.210, which covers investigation
records of law enforcement agencies, safeguarded release of the names. We thus
consider our discussion of information found in files maintained for employees to remain
good law.
Tacoma Public Library v. Woessner, 90 Wash. App. 205, 951 P.2d 357, 972 P.2d
932 (1998) (as modified on remand) also addressed the statutory phrase “files maintained
for employees.” Carolyn Woessner sought disclosure, from the library, of information on
employees’ rates of pay, amounts of vacation and leaves hours, benefits, and employer
contributions to employee pensions. Woessner argued that the library did not maintain
the files for employees because the city of Tacoma prepared the reports and the library
did not include the reports in an employee’s personnel file. This court deemed
Woessner’s reading of the exemption too narrow. This court reasoned that the statute
does not specify that the exempted information actually come from an employee’s
individual personnel file. The court directed the focus to be on whether the requested file
contains personal information normally maintained for the benefit of employees rather
than the location where the agency stores the information.
The Jane Does principally rely on Bainbridge Island Police Guild v. City of
Puyallup, 172 Wash. 2d 398 (2011). A police officer and his union brought action seeking
to enjoin disclosure of a criminal investigation report and internal investigation report
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from a police department in regards to allegations of sexual assault against a police
officer. The Supreme Court ruled that the department must produce the report, but could
excise the officer’s name. The court held that the name of the officer constituted personal
information since the allegations of misconduct were never substantiated. The high court
never addressed whether the records were the type of records found in a file maintained
for the benefit of an employee.
We question the validity of Bainbridge Island Police Guild v. City of Puyallup
after the Supreme Court’s recent decision in Predisik v. Spokane School District No. 81,
182 Wash. 2d 896 (2015). Nevertheless, we find Bainbridge Island to be inapplicable
because the allegations of sexual misconduct were never substantiated. According to the
Jane Does, Spokane Falls Community College substantiated the complaints against
Darren Pitcher. We also emphasize that the Bainbridge Island court never addressed
RCW 42.56.230(3)’s discrete element of the information arising from a file maintained
for employees.
The Jane Does carry the burden of establishing an exemption shields the
identifying information sought to be redacted. Despite arguing to the contrary, the Jane
Does present no evidence that Spokane Falls Community College kept the subject records
in any personnel file. The Jane Does present no facts that the records were similar in
nature to records maintained for the benefit of an employee.
During oral argument, counsel for the Jane Does characterized his clients as
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courageous women who spoke against abuse from a powerful man. We agree. We
applaud the Jane Does as important whistleblowers. Their courage expands in light of
the state's policy of demanding disclosure of the women's names in response to a Public
Records Act request.
CONCLUSION
We reverse the superior court's order permitting redaction of personal identifiers.
We remand for the superior court to order release, without excision, of the requested
records.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, J.
WE CONCUR:
Lawrence-Berrey, C.J.
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