Allegations and the PRA: Navigating the Disclosure of Internal Investigations

During recent Public Records Act (PRA) webinars, MRSC received a lot of questions about internal investigations. These records highlight the tension between open government and employee privacy. Often these records contain embarrassing details that the average person would not want publicly known. However, these records also reflect how effectively a local government responds to allegations of misconduct.

Here are answers to some of the questions MRSC received on this sensitive topic.

What exemptions may apply to internal investigations?

RCW 42.56.230(3) exempts from disclosure “personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent disclosure would violate their right to privacy.”

The courts have approved the use of this exemption to redact the identity of an employee who is the subject of an internal investigation if the employee’s right of privacy would be invaded or violated by disclosure as defined in RCW 42.56.050. A person’s right to privacy is invaded or violated only if disclosure:

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

If this exemption applies, it will only apply to the “personal information” in the file, not to any of the details of the investigation. Most likely, this “personal information” will be the employee’s name and personal contact information.

RCW 42.56.250(6) applies to investigations into unfair labor practices or allegations of discrimination or harassment in employment. Records are exempt in their entirety while the investigation is ongoing. Once closed, the names of complainants and witnesses must be redacted unless they consent to disclosure. This exemption does not apply to the identity of the charged employee once the investigation is closed.

What type of allegation would be “highly offensive”?

The statute does not define “highly offensive,” so we must look to court cases for examples.  First, the court looks at the nature of the alleged conduct to see if it is the type that a person typically keeps private: “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 [person’s] life in [their] home, and some of [their] past history that [they] would rather forget.” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 135 (1978),  (quoting Restatement 2^nd of Torts).

In the context of employment investigations, sexual misconduct is likely one of the few types of allegations that might be considered “highly offensive.” This is what we have seen in the case law:

• Allegation of sexual assault by a police officer was “highly offensive.” Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398 (2011).
• Allegations of sexual misconduct by a teacher with a minor are “highly offensive.” Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199 (2008).
• Allegations of improperly profiting from agency business were not “highly offensive” because the court did not believe the behavior described was “particularly reprehensible” and the potential misconduct involved a fairly small amount of funds. West v. Port of Olympia, 183 Wn. App. 306 (2014).
• Allegation of creating a hostile work environment was not “highly offensive” because “the allegations--including angry outbursts, inappropriate gender-based and sexual comments, and demeaning colleagues and employees--are nowhere near as offensive as allegations of sexual misconduct with a minor.”  Morgan v. City of Federal Way, 166 Wn.2d 747 (2009).

What type of allegation is “not of legitimate concern to the public?”

The courts have told us that the public has a legitimate interest in how agencies conduct investigations. Further, an employee has no privacy in the act of investigation itself. See Predisik v. Spokane Sch. Dist. No. 81, 182 Wn.2d 896 (2015). Further, the public always has a legitimate interest in substantiated allegations.

The public also has a legitimate interest in all allegations against higher-ranking officials, such as police chiefs and elected judges, even if these allegations are unsubstantiated and “highly offensive.” See City of Fife v. Hicks, 186 Wn. App. 122 (2015); and Morgan v. City of Federal Way, 166 Wn.2d 747 (2009). 

An employee is accused of sexual misconduct. Before the investigation can conclude whether the allegation is substantiated the employee voluntarily resigns. Is the allegation considered substantiated or unsubstantiated?

This is a close call. I might change the question to “what interest does the agency have in protecting the privacy of an ex-employee?” Most of the exemptions listed in Chapter 42.56 RCW are permissive, which means the agency is not obligated by the law to assert the exemption, although there may be policy-based reasons to assert it. This may be a good place to take advantage of the third-party notice provisions of the PRA.

In the context of a discrimination or harassment investigation, what if the accused employee leaves? Is the investigation considered open or closed?

If there is no longer an active investigation then the categorical exemption in RCW 42.56.250(6) would not apply. I would treat the case as closed for purposes of redacting complainant and witness names.

An employee is accused of highly offensive misconduct. An investigation concludes that the allegation is unsubstantiated. A local newspaper requests a copy of any investigation files by the employee’s name. Won’t the employee’s privacy be violated if the records are released but only the name is redacted?

This is one of the drawbacks of how the exemption is drafted. It only applies to “personal information,” so only that type of information can be redacted. There is no categorical exemption that would apply to the whole report or even the specific details. Only an employee’s “identity” has been considered personal information in cases such as Bainbridge Island Police Guild and Bellevue John Does. The Bainbridge Island case even examines the fact that the officer’s identity had been already widely reported in the news.

Is there an exemption that would apply to the identity of complainants and witnesses outside of the RCW 42.56.250(6) context?

For standard human resources (HR) complaints, there does not appear to be an exemption that applies.

If the complaint is made to an investigative, law enforcement, or penology agency, RCW 42.56.240(2) might apply if the right conditions are met.

RCW 42.56.375 protects the identities of witnesses or victims of sexual misconduct committed at college campuses by an employee of that institution.

There are whistleblower protections in RCW 42.41.030 that protect complainants. This statute protects the identity of an employee reporting alleged improper governmental action. Note, however, that the statute specifically excludes personnel actions so it would likely not apply in a standard HR internal investigation.

Conclusion

Internal investigations generate public records that the public has a right to request and inspect. But that right is carefully balanced against the privacy interests of agency employees. This is a sensitive area that should be handled delicately and with guidance from your agency attorney.