Predisik v. Spokane School District No. 81

Yu, J.

¶1 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.

Facts and Procedural History

¶2 Anthony J. Predisik and Christopher Katke are longtime employees of 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.

¶3 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.

¶4 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 investigation. The letter does not describe the allegations in any further detail and does not name Predisik’s accuser.

¶5 The second and third records are spreadsheets that document the amount of leave pay Predisik and Katke had accumulated through April 2012. 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]negations currently under investigation.” Id. Similar to the leave letter, the spreadsheets provide no further detail about the allegations or the accusers.

¶6 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 of RCW 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 v. Belle-vue School District No. 405, 164 Wn.2d 199, 189 P.3d 139 (2008), the trial court found that Predisik’s and Katke’s identities, but not the 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 Wn. App. 513, 319 P.3d 801 (2014).

¶7 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 Wn.2d 1021, 328 P.3d 903 (2014).

Analysis

¶8 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) (plurality opinion) (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 Wn.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 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).

¶9 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

¶10 Predisik and Katke rely principally on RCW 42.56.230(3), which exempts from disclosure “[p]ersonal information in files 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 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 Wn.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.” Id. at 211.

¶11 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.

¶12 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 violatedi, it] does not explicitly identify when the right to privacy exists.” Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 412-13, 259 P.3d 190 (2011) (plurality opinion) (citing Bellevue John Does, 164 Wn.2d at 212). We previously used principles of tort law to fill this definitional void and define the contours of the PRA’s privacy right. In Hearst Corp. v. Hoppe, 90 Wn.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 Restatement (Second) of Torts § 652D (Am. Law Inst. 1977) (§ 652D).

¶13 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 the Restatement’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 of facts 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.

¶14 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 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.

¶15 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 from 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 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.

¶16 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.

¶17 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 “[t]he fact of the allegation ... does not bear on the teacher’s performance or activities as a public servant.” 164 Wn.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.

¶18 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. 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.

¶19 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.

¶20 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 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, http://www.n5dimes.com/2014/08/16/us/darren-wil son-identified-as-officer-in-fatal-shooting-in-ferguson-miss ouri.html.

¶21 But secrecy can breed suspicion in more subtle ways, too. For example, if we accepted Predisik’s and Katke’s positions, 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.

¶22 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.

B. Investigative record exemption

¶23 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 Wn.2d 837, 843, 287 P.3d 523 (2012) (citing Cowles Publ’g Co. v. State Patrol, 109 Wn.2d 712, 728, 748 P.2d 597 (1988) (plurality opinion)). The three records here are neither.

¶24 The leave letter and spreadsheets are not essential to law enforcement. Our decision in Brouillet v. Cowles Publishing Co., 114 Wn.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. Id. 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).

¶25 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 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

¶26 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.

Madsen, C.J., and Johnson, Stephens, and González, JJ., concur.

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.