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Washington Supreme Court Narrows Public Records Act Investigative Records Exemption

SPD Officers, courtesy of Martin.
As 2013 came to a close, the Washington Supreme Court issued a 5-4 decision in Sargent v. Seattle Police Dep’t, __ Wn.2d __ (2013), that, for some, upends their long-held understanding of how to apply the “investigative” exemption under the Public Records Act (PRA) (chapter 42.56 RCW). In a strong dissent, four of the justices stated that the majority’s interpretation of this PRA exemption “threatens the efficacy of open and active criminal investigations.” Time will tell whether such a threat will become reality.

The court here faced a situation involving a confrontation between an off-duty police officer (Officer Waters) and a citizen (Sargent). The two got into an altercation and Sargent was arrested for assault. Sargent spent the night in jail and, because he wasn’t released, the police department referred the case to the county prosecuting attorney’s office as a “rush file,” requiring, within 48 hours after arrest, a judicial determination of probable cause.

The county prosecutor declined to file charges and referred the matter back to the police department for follow-up investigation. Sargent submitted his first PRA requests a few weeks later, requesting various records related to the confrontation (e.g., incident report, name and badge number of the officer, 911 tapes, dispatch log). The city denied the requests based on the exemption for effective law enforcement in RCW 42.56.240 (also known as the investigative exemption). Over a month later, the police department completed its witness interviews and referred the matter to the city attorney for charges. The city attorney declined to prosecute and the criminal investigation was closed.

A few months later, Sargent renewed his original PRA request and added a request for records related to a pending internal police department disciplinary investigation of Officer Waters. The city produced records in response to the request and, in doing so, redacted certain information (e.g., witness names, other names, and identification information), and withheld the internal investigation file, relying upon the effective law enforcement exemption. The city subsequently completed its internal investigation of Officer Waters, and a few months later Sargent filed a PRA lawsuit against the city.

In applying these facts to the law, our state high court established (or reiterated, depending on your perspective) a bright-line rule in applying the “categorical exemption” that exists within the effective law enforcement exemption under RCW 42.56.240. To refer to an exemption as “categorical” under the PRA means that the records that fall under the exemption are exempt in their entirety from disclosure. In such rare circumstances, an agency can claim a categorical exemption for the applicable records, and the agency isn’t required to conduct a record-by-record analysis to determine whether specific information in those records is exempt and subject to redaction.

The bright-line rule set forth by the court is that the categorical application of the exemption in RCW 42.56.240 applies:

only to a small class of information, the nondisclosure of which we are confident is always essential to effective law enforcement: situations where police have not yet referred the matter to a prosecutor for a charging decision and revelation to the defendant.

Based on past decisions by this same court, and as pointed out by the dissent, the previous understanding by many was that there was a categorical exemption under the PRA for most law enforcement investigative records from the point at which a suspect is arrested until the conclusion of the open and active investigation of the matter by law enforcement. The concern raised by the dissent is that in situations, as happened here, where the matter is referred to the prosecutor and the prosecutor refers the matter back to law enforcement for more investigation, and the law enforcement agency continues with an open and active investigation of the case, there continues to be a strong basis for the PRA’s categorical exemption to apply to the investigative records related to the case.

As a practical matter, the dissent points out that in such “rush filing” situations what generally happens is that law enforcement doesn’t have time to complete its investigation in the 48 hours after arrest in which a judicial determination of probable cause is required. In such situations, as happened here, a prosecutor may refer the case back to law enforcement for further investigation and the case will remain open and active. To address such situations, the dissent argued:

it is essential to effective law enforcement that investigative records remain categorically exempt in this limited circumstance where the case has been declined for prosecution, the investigation is open and active, and enforcement proceedings are contemplated when the PRA request is received.

Regarding the issue of categorical exemptions, it’s important to point out, as explained by the majority, that absence of a categorical exemption doesn’t mean that records or information in records may not be otherwise exempt. What it means is that, in the absence of a categorical exemption, before claiming that certain records are exempt from disclosure, the agency must conduct a record-by-record analysis of the records at issue and determine whether an exemption applies to information in those records. The majority explains:

This is not to say that police cannot continue to protect investigations from disclosure following referral to a prosecutor. Some of the information Sargent sought may very well have been exempt. We simply hold that the SPD had the burden to parse the individual documents and prove to the trial court why nondisclosure was essential to effective law enforcement.

The majority also clarified that, while the exemption under RCW 42.56.240 can apply to investigative records related to an internal investigation, it cannot apply categorically. Here, the PRA requester, Sargent, requested not only records related to the criminal investigation but also to the internal investigation that the police department conducted regarding Officer Water’s actions. The court held that the exemption in RCW 42.56.240 applies to the internal investigation information in those records if nondisclosure is essential to effective law enforcement. If an agency claims this exemption related to internal investigation records, the burden rests on the agency to prove that specific portions of the internal file are exempt because they are essential to effective law enforcement.

The dissent disagreed with the majority on this point as well, arguing that a categorical exemption under RCW 42.56.240 should apply to an internal disciplinary investigation as long as that investigation is open and active. The dissent argued that its approach would strike “a balance between promoting government accountability and furthering sensitive law enforcement investigations,” and that the majority’s decision could unsettle “this balance in such a way that puts the public at risk through compromised law enforcement investigations.”

As I stated above, time will tell what the impact of this decision will be. I think we can expect, however, that the concerns raised by the dissent will continue to be raised by others. I recommend that local government law enforcement agencies carefully review this decision as it applies to your practices, particularly the manner in which you respond to PRA requests for records related to criminal and/or internal investigations.

As a final note, this court decision also includes interesting discussion and analysis regarding additional PRA issues (e.g., related to disclosure of witness identities, applying the factors in determining penalties under the PRA, and concerning nonconviction records under chapter 10.97 RCW). I think the Sargent v. Seattle Police Dep’t decision is one that local law enforcement agencies should become particularly familiar with because the court’s analysis provides PRA guidance applicable to local agencies on a range of important issues.

Photo Courtesy of Martin.

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About Joe Levan

Joe served as an MRSC Legal Consultant and Legal Manager. He has been a municipal attorney for many years, including as an in-house city attorney, in private practice for two municipal law firms through which he provided litigation and a range of other services to several Washington municipalities, and as part of the in-house legal team for Sound Transit. He no longer works for MRSC.