Everything but the Name

State Supreme Court rejects broad interpretation of a police officer’s right to privacy in a Bainbridge Island case.

In an important public records decision, a divided Washington state Supreme Court has significantly limited the privacy rights of police officers in cases involving allegations of misconduct. The court’s decision came earlier today in the case of a Bainbridge Island policeman who was accused of choking and sexually assaulting a woman during a traffic stop in September of 2007.

The case, Bainbridge Island Police Guild v. City of Puyallup, goes to the controversy over whether and what portions of police investigative records should be publicly released in instances where the officers involved in alleged misconduct are exonerated. In this instance, Bainbridge Island police officer Steven Cain was “exonerated” by a Mercer Island Internal Affairs investigation and the Kitsap County Prosecutor–after reviewing a criminal investigation report prepared by the Puyallup Police Department–concluded there was not sufficient evidence to bring charges against Officer Cain.

When journalists and the complainant, herself, sought to review the investigative reports, Officer Cain and the Bainbridge Island Police Guild objected, but not before a copy of the Puyallup report had been made available to a reporter for the Kitsap Sun newspaper. Even though the newspaper published an article identifying Officer Cain and the allegations against him, the legal dispute went forward. Both a Kitsap County Judge and a Pierce County judge eventually ruled that the two reports were exempt from disclosure, and should be entirely withheld, to protect Officer Cain’s privacy.

The controversy has a direct bearing on the City of Spokane which, until now at least, has taken the position that it has the right and the obligation to withhold entire police investigation reports from public records requesters in cases where a police investigation exonerates the officer(s) involved. Last December, for example, Mayor Mary Verner defended the policy by saying that while she was committed to making “all investigation reports of complaints against Spokane Police officers available for public scrutiny,” that commitment was at odds with the city’s current personnel policy prohibiting “the release of records and investigation reports when the complaints are determined to be unfounded.”

Because the policy barring the release of such reports had been incorporated “into contracts  between the Spokane Police Guild and the City,” she explained, release of the reports would “inevitably lead to a lawsuit against the City in which there would be a very low probability that the City would prevail.”

Months earlier, in a June 9, 2010 letter to Spokane attorney Breean Beggs, Sr. Assistant Attorney Pat Dalton defended the policy not as a matter of contract, but as a matter of law.

Either way, with today’s Supreme Court ruling, Spokane’s policy is now indisputably contrary to the state’s public records law. The Spokane police—like every other police agency in the state—will now have to produce such investigative reports with only the officer(s) names redacted or the city will face public records lawsuits and penalties.

Writing for the majority, Justice Mary Fairhurst wrote that the trial court was in error when it ruled that “the personal information exemption [to the public records law] prohibited production” of the entire reports.

“Although lacking a legitimate interest in the name of a police officer who is the subject of an unsubstantiated allegation of sexual misconduct,” Judge Fairhurst wrote, “the public does have a legitimate interest in how a police department responds to and investigates such an allegation against an officer.”

To comply with the law, she concluded, the trial court should have ordered the production of the report “with only Officer Cain’s identity redacted.” [blacked out]

In dissent, only one member of the court, Justice James Johnson, took the position that the entirety of the reports should have been withheld in order to protect the officer’s privacy.

Significantly, the argument that divided the court (even in their overall agreement that the reports should be released) was the question of whether Officer Cain should be entitled to any privacy under the circumstances.

Justice Fairhurst’s majority opinion concludes that the allegations against Officer Cain constituted “personal information” exempt from disclosure and that the officer had a right to privacy in his identity. Yet, she continued, the public also has “a legitimate interest in how a police department responds to and investigates such an allegation against an officer.”

In the balance of those interests, Justice Fairhurst concluded, the proper course under the state’s public records law is to release the report, but redact the officer’s name. Joining Justice Fairhurst in her opinion were Justices Gerry Alexander, Tom Chambers, and Susan Owens.

Chief Justice Barbara Madsen, and Justices Debra Stephens, Charles Johnson, and Justice Pro Tem Richard Sanders took the position that the reports should have been released without the officer’s name being withheld.

Writing for this bloc of the court, Chief Justice Madsen insisted the Fairhurst bloc misinterpreted the personal information exemption in state law and that this exemption was intended only to protect “one’s personal, private affairs.”

“Whether substantiated or not,” the Chief Justice wrote, “allegations of public misconduct while performing public duties do not concern an individual’s personal privacy interests.”


–Tim Connor

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