Incident reports, mug shots exempt from disclosure

WASHINGTON–In early September, a state appeals panel in Spokane unanimously held that a police incident report and jail booking photograph contained in an investigative file are “categorically exempt” from disclosure under Washington’s Public Records Act.

The court determined that the report was part of an open investigatory file and need not be released “until the conclusion of the criminal proceedings.” The court also held that although the police department had discretion to release the photo to assist an investigation, it could not be compelled to do so.

The Associated Press reported that the decision stemmed from a civil suit filed by The (Spokane) Spokesman-Review against city officials following the arrest of an assistant city attorney.

In May 1997, Spokane city attorney Milton Rowland was arrested for third-degree assault. The newspaper published a story based on a police incident report that was read to a reporter by a police department official.

Cowles Publishing Co., the newspaper’s parent company, then requested a copy of the incident report and asked that the booking photo be released. The Spokane Police Department denied the request, asserting that the records were investigative records and therefore exempt from disclosure. Cowles then filed suit in Superior Court in Spokane to force disclosure.

In August 1997, the court entered an order requiring disclosure. The department appealed the decision the following day.

Prior to the appellate panel’s decision, Rowland entered a guilty plea. Meanwhile, in a separate case, the Washington Supreme Court held that the contents of an open police investigatory file are exempt from disclosure under Washington law. Subsequently, the police department released a copy of the incident report, but withheld the photograph.

Cowles argued that the definition of “open investigation” should be limited to those investigations in which an arrest has not yet been made.

In upholding the refusal to disclose the information, the court held that “open investigation” has a broad meaning. The panel held that whether an arrest has been made was not the only factor to be considered, noting that courts may consider, for instance, the views of the case investigators and whether resources are still being allocated to the investigation. (Cowles Publishing Co. v. Spokane Police Dept.; Media Counsel: Duane Swinton, Spokane)