Ongoing Public Employer Investigations of Alleged Employee Misconduct: PRA Issues

The Washington State Supreme Court issued an interesting decision last week addressing, primarily, whether the names of public employees that are the subject of ongoing investigations of unidentified, alleged misconduct are exempt from disclosure under the Public Records Act (PRA). The court’s decision in Predisik v. Spokane Sch. Dist. No. 81 was a close one, with four of the nine justices dissenting, and with the majority concluding that “[p]ublic employees have no privacy right in the fact that they are being investigated by their public employer.”

The facts of the case relate to two school district employees who were put on paid administrative leave. According to the district’s “administrative leave letter” given to one of the employees, the leave was “pending completion of the District's investigation into allegations of inappropriate interactions with a former student.” So, the allegations are only very vaguely alluded to. The district’s separate investigations of the two employees began in late 2011 and early 2012 and remain ongoing, over four years later.

Two media outlets made PRA requests, for the administrative leave letter and for records (spreadsheets) documenting the leave pay received by the two employees. The two employees sued the district to prevent it from releasing these records. The trial court ordered the records disclosed with the employee names redacted, and the state court of appeals affirmed.

Although the employees sought to enjoin release of the records in their entirety, the Supreme Court directed its attention at the issue of whether the PRA recognizes 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, specifically, whether the employee’s name can be redacted. The focus of that issue is the “personal information” exemption in 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."

The court concluded that “the PRA does not recognize a right of privacy in the mere fact that a public employer is investigating an employee,” distinguishing between the investigation itself and the employee’s conduct giving rise to the investigation. The court emphasized that the records requested did not disclose “any salacious facts that one might consider a private matter” and “contain no specific allegations of misconduct at all.”

The dissent disagreed on this point, arguing that, consistent with prior case law, public employees who are the subject of unsubstantiated allegations of misconduct have a right to privacy in their identities. The dissent considered the allegations of “inappropriate interactions with a former student” to be “unsubstantiated allegations” – rather than no allegations at all. The dissent argued that “the disclosure of one's identity associated with vague allegations and evidence of pending investigations related to one's profession would be highly offensive to a reasonable person,” and that “the public does not have a legitimate interest in the names of teachers who are under investigation for unsubstantiated allegations.” That argument did not prevail.

So, the law regarding the “personal information” exemption in RCW 42.56.230(3) continues to evolve. This exemption is “conditional,” exempting a record or information in that record only insofar as necessary to protect a public employee’s right to privacy. Under the Predisik decision, that right is not violated by the disclosure of the mere fact that public employees are the subjects of an open investigation regarding vague allegations of misconduct.

The court did not address how specific and detailed an allegation has to be to constitute an “unsubstantiated allegation” to which the right of privacy might attach. The court’s majority deemed “inappropriate interactions with a former student” to be insufficient. Presumably, the court will require detail sufficient to determine whether the allegations would be highly offensive to a reasonable person and not of legitimate concern to the public – detail that the court determined was not present here.

Image courtesy of Cacophony.