Police Records: My Take on Some of the Tricky Disclosure Questions

We received a number of interesting questions during our recent webinar on disclosure of police records that we didn’t have time to answer, and, based on the number of questions submitted, it’s clear that I’m not the only one who finds this to be a difficult area of public records law. So, today I’ll provide my thoughts on some of the trickier questions we weren’t able to address during the webinar.

First, I want to note that in my opinion this area poses enormous challenges for local governments because of the variety of factors that must be considered when deciding whether to disclose, including, to name a few, whether a juvenile is involved, the status of the investigation, and the potential privacy rights of individuals involved in the case. Adding to the difficulty are the numerous and sometimes overlapping statutes (many with dense and unclear language) that could potentially apply to a record.

Here is my take on some of the webinar questions we didn’t get to address dealing with the investigative records exemption, juvenile records, and the exemptions that apply to personal information:

RCW 42.56.240(1) – the Investigative Records Exemption

If a rape case was unfounded, could an agency still use RCW 42.56.240(1) to protect identifying information of the alleged victim and some of the explicit details?

I think the answer is “yes.” Information in an investigative record can be withheld under RCW 42.56.240(1) if the agency determines that withholding such information is essential to protect a person’s right to privacy. The statute applies to all “investigative” records and does not distinguish between founded or unfounded cases, so records related to an unfounded case are still considered “investigative.” If an agency concludes that someone’s identity—such as the alleged victim’s—and the explicit details of the alleged crime need to be withheld to protect that person’s right to privacy, then RCW 42.56.240(1) does allow withholding that information. (Caveat: don’t forget about the Koenig v. Des Moines case when applying the right to privacy. That case determined that the identity of a child victim of a sex crime could be withheld under RCW 42.56.240(1), but that the explicit details of that crime were of legitimate concern to the public.)

Chapter 13.50 RCW – Juvenile Records

Given that some juvenile records can be released only to particular individuals, how should an agency verify that the requestor is one of the categories of people allowed to have a copy of the record? Often, people will only give their email address.

Since juvenile records are confidential, with limited release allowed only to specified individuals, verifying the requestor’s identity is critical. In my opinion, an agency should require requestors to provide valid identification and to sign an affidavit identifying their relationship to the juvenile.

If a juvenile’s name or other identifying information appears in a police record, but that juvenile is not a victim, witness, or offender, should the juvenile’s information be redacted under RCW 13.50.100?

I don’t think so. RCW 13.50.100 applies to records of a particular juvenile created or held by a law enforcement or other “juvenile justice or care agency” that don’t relate to the commission of a juvenile offense. If a police report mentions a juvenile’s name in passing, that report is not a juvenile record and RCW 13.50.100 does not apply. It is possible, however, that the juvenile’s name and identifying information could be withheld under RCW 42.56.240(1) if the agency determines withholding that information is essential to the juvenile’s right to privacy.

Can an agency release a police report about a juvenile damaging a building when the juvenile was not arrested and the case was not referred to the prosecutor? The building owner has requested the records.

Even though the juvenile was not arrested or charged, I think the police report is a juvenile record related to the commission of a crime that falls under RCW 13.50.050. Although juvenile offender records are generally confidential, an exception allows victims of the crime to obtain: (1) the identity of the juvenile and his/her parents; and (2) the circumstances of the alleged or proven crime. See RCW 13.50.050(9). So, here, the building owner can obtain that information because they were the victim of the crime. However, it is likely a better approach to summarize the circumstances rather than release the entire report given that the report may include more than just the “circumstances” of the crime.

RCW 42.56.230 - Exemptions for Personal Information

Why does RCW 42.56.230(7)(a) NOT exempt birthdates in police records?

RCW 42.56.230(7)(a) exempts any record used to prove identity, age, or personal information required to apply for a driver’s license or identicard. This is a limited exemption applicable only to records provided when applying for a driver’s license or identicard. So, this exemption cannot be cited to generally redact birthdates in police records.

Didn’t the court say in Lakewood v. Koenig that there's no exemption for driver’s license numbers?

In its 2014 Lakewood v. Koenig opinion, the Washington Supreme Court touched on the issue of driver’s license numbers, strongly suggesting, in footnote 7, that there is no exemption for driver’s license numbers. However, the Legislature amended RCW 42.56.230(5) after the Lakewood v. Koenig case, adding what we think is a general exemption for driver’s license numbers.

If you disagree with any of my analysis or conclusions in this blog post, please email me at fcollins@mrsc.org. I would appreciate hearing your opinion!