New Ruling Provides Guidance on “Specific Intelligence”

In West v. City of Tacoma, No. 51487-7-II (Published January 28, 2020), Division II of the Court of Appeals looked at two issues:

1. What an agency needs to prove when it claims the Public Records Act’s exemption for “specific intelligence information” under RCW 42.56.140(1), and
2.  What is an “adequate search."

Background

In 2014, Arthur West requested records related to the City of Tacoma’s acquisition, use, and operation of cell site simulator (CSS) technology. Because of a non-disclosure agreement with the Federal Bureau of Investigation (FBI), the city redacted information about the make and model of the CSS equipment under RCW 42.56.240(1)’s “specific intelligence information” exemption.

Mr. West filed a second request related to CSS technology in 2015. In this second request, he asked for “[a]ll communications concerning, and records relating to, the withholding of, or the production of an unredacted copy of, the non-disclosure agreement” between the city and the FBI, as well as copies of any records released in response to a public records request for CSS-related records. The city’s response to this second request disclosed emails that the city possessed at the time of the 2014 request, but the city did not search for or disclose.

Mr. West sued, claiming in part that the specific intelligence information exemption did not apply. He also claimed that emails disclosed in response to the 2015 request should have been disclosed in response to the 2014 request. And, that failure to do so was evidence that the city did not conduct an adequate search for records in 2014.

On summary judgment, the trial court ruled in favor of the city on the specific intelligence information issue and in favor of Mr. West on the failure to disclose the emails.

Specific Intelligence Information

RCW 42.56.240(1) exempts from public records disclosure “specific intelligence information … the nondisclosure of which is essential to effective law enforcement.”

After reminding us that the statute does not define “specific intelligence information,” the Court summarized existing case law. It quoted with approval holdings of those cases the rule that narrowly defines intelligence information as “gathering or distributing secret information, information about an enemy, or conclusions drawn from such information” and that define “specific” as “disclosing particular methods or procedures, or gathering or analyzing intelligence information.”

The city (and the United States) argued that revealing the make and model of the CSS in combination with other publicly accessible information would allow criminals to figure out what equipment the city possessed and how to defeat it. The majority of the Court disagreed. It concluded that the make and model information did not reveal when or how the city used technology, and so it did not expose the investigative techniques of the city. The Court also concluded that the city’s testimony was “conclusory” and that the city had failed to “state how certain CSS technology makes or models might differ from others and why knowledge of these distinctions would be dangerous in the hands of criminals.”

A dissenting judge said that the make and model information necessarily discloses the capabilities and limitations of the equipment. And, the disclosure of that information would provide criminals with the means to thwart law enforcement.

Adequate Search

On this issue, the Court pointed out the danger of something agencies do every day — interpret records requests.

The emails at issue were related to the city’s response to a newspaper article about CSS technology and how the city's response needed to comply with its nondisclosure agreement. The city employee in charge of gathering records for the 2014 response did not search for those records. He did not consider those documents to be responsive to a request for records related to the “acquisition, use, or operation” of the technology.

The Court disagreed. It emphasized that “records” included such written communications as the emails and that the city should have included these documents in its search and subsequent disclosure.

Where Do We Go from Here?

This case gives agencies three issues to consider.

First, if an agency cannot comply with a nondisclosure agreement, will other parties stop sharing equipment and information with it? Ask your agency partners what they think.

Second, in comparing the two Department of Corrections (DOC) cases related to video surveillance in prisons (exempt) with the case of university surveillance footage (not exempt), the Court emphasized the specific setting of a prison as compared to the more general setting of the university. So, agencies need to think about how they will provide (non-conclusory) testimony and evidence that shows how disclosure of specific intelligence information will reveal particular (not general) methods of gathering or evaluating intelligence information.

Third, the opinion signals that courts will likely look unfavorably on narrow interpretations of a request. In this case, the Court considered internal discussions about how to answer questions about the use of the technology to be no different from records about the technology. It disapproved of the city’s narrow reading.

As of the date of this blog post, we do not know if Tacoma is appealing the decision. If they do, watch this blog for a follow up, and remember that MRSC provides summaries of significant state appellate court decisions related to public records on our Public Records Act Court Decisions webpage.