Disclosure of Law Enforcement Investigative Records

What is an Investigative Record?

To be considered an investigative record, the record must be compiled (but not necessarily created) by law enforcement as a result of a specific investigation, focusing with special intensity upon a particular party. See Dawson v. Daly (1993). The investigation must be “designed to ferret out criminal activity or to shed light on some other allegation of malfeasance.” See Sargent v. Seattle Police Department (2013); Koenig v. Thurston County (2010).

The record does not have to be physically located within an investigative file to be considered an investigative record. See City of Fife v. Hicks (2015).

If the record concerns law enforcement officers performing other non-investigative duties - for instance, directing traffic, committing a mentally ill individual, or doing routine administrative matters - the record is not investigative.

Open Investigations

The entire investigative file for an open investigation is categorically exempt from disclosure under RCW 42.56.240(1), meaning that the entire file may be withheld without any further analysis or justification. RCW 42.56.240(1) exempts “specific investigative records ... the nondisclosure of which is essential to effective law enforcement ...” Nondisclosure of open investigative records is always presumed to be essential to effective law enforcement. See Sargent v. Seattle Police Department (2013).

To be considered an open investigation, law enforcement must still be investigating the matter, and enforcement proceedings must still be contemplated. See Newman v. King County (1997).

If the investigation is open, the agency is not required to conduct a record-by-record analysis to determine whether specific information in the records is exempt. See Newman at 575. Similarly, an agency is not required to provide an exemption log identifying the withheld records in the open investigation file, since this would reveal how the investigation is being conducted.

Instead, when denying the file, the agency can explain in writing to the requestor that the request seeks records of an ongoing investigation which are categorically exempt under RCW 42.56.240(1) (and quote the exemption).

If the investigation has been closed or referred to the prosecutor for a charging decision, the exemption in RCW 42.56.240(1) no longer applies categorically, and the agency must conduct a record-by-record analysis to determine if that exemption or a different exemption applies. Referring a case to the prosecutor includes rush filings and cases that have been referred to the prosecutor but are then referred back to law enforcement for additional investigation. See Sargent v. Seattle Police Department (2013).

Investigative Records Essential to a Person's Right to Privacy

RCW 42.56.240(1) exempts “specific investigative records … the nondisclosure of which is essential ... for the protection of any person's right to privacy.”

RCW 42.56.050 states that a person’s right to privacy is violated only if disclosure of the information:

1. Would be highly offensive to a reasonable person, and
2. Is not of legitimate concern to the public.

When determining what is highly offensive to a reasonable person, consider whether the person’s expectation of privacy is reasonable or whether there has been a clear, affirmative waiver of the right to privacy. See Bainbridge Island Police Guild v. City of Puyallup (2011).

Information of “legitimate” concern to the public means information that is of “reasonable” concern. See Dawson v. Daly (1993). For example, explicit details of a sex crime involving a child victim are of legitimate concern to the public, although the identity of the victim may be redacted under RCW 42.56.240(5). See Koenig v. City of Des Moines (2004).

The “right to privacy” under the PRA “will not protect everything that an individual would prefer to keep private.” See Predisik v. Spokane School Dist. No. 81 (2015). Rather, as stated by the Supreme Court in Predisik, only “private facts” such as those that are “fairly comparable” to the following will qualify for non-disclosure:

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.

There is no simple "yes" or "no" answer regarding whether nondisclosure of a record is essential to protect a person’s right to privacy. The applicability of the exemption must be applied case-by-case to each record. A potential example of records that could fall under the exemption are gruesome photos of a homicide victim taken by law enforcement, which could violate the immediate relatives' right to privacy. See Comaroto v. Pierce County Medical Examiner’s Office (2002). Compare this with a university’s surveillance video footage recording student activity in public areas of an urban university campus, which does not qualify for the privacy exemption. See Jane Does 1 through 15 v. King County (2015).

Investigative Records Essential to Effective Law Enforcement

RCW 42.56.240(1) also exempts “specific investigative records … the nondisclosure of which is essential to effective law enforcement... .”

According to the Washington State Supreme Court, “This exemption is not limited in application to only when enforcement would cease to function were the documents in question disclosed.” See Koenig v. Thurston County (2010) (emphasis added). Rather, the legislature’s inclusion of the word “effective” in the exemption means that the focus is on whether disclosure would compromise the effectiveness of law enforcement.

Specificity is key when asserting that nondisclosure is essential to effective law enforcement. For example, a generalized contention that disclosure of witness identifying information will have a chilling effect on future witnesses is not enough. See Sargent v. Seattle Police Department (2013). Instead, identify the specific negative effect that will result if the record is disclosed and show that it is “essential to effective law enforcement to prevent such effects. See Prison Legal News v. Dep't of Corrections (2005).