Wash. high court rules internal investigations partially open

The Washington state Supreme Court ruled Thursday that the release of internal investigation records does not violate the privacy rights of even exonerated police officers in Bainbridge Island Police Guild v. City of Puyallup. The court, however, was split on whether or not the name of the officer can be redacted from the report, eventually ruling with a four-justice majority that the name should be redacted.

Litigation in the case began after several people, including a reporter for the Kitsap Sun, requested the internal investigation records of Steven Cain, a Bainbridge Island, Wash. police officer who was accused of sexually assaulting a woman during a traffic stop in September 2007. After the investigation, county prosecutors declined to file charges against Cain, citing a lack of evidence.

Records of the investigation were held by multiple law enforcement agencies including the Bainbridge Island police and the Puyallup, Wash. police department who had been asked to investigate the claims. Upon request to the Bainbridge Island police department, the Puyallup report was released to two local reporters who were able to publish stories using the records and identifying Cain in early 2008.

Subsequent requests by the initial two reporters, a local resident, and the alleged victim for both the already released Puyallup report and the report from an investigation by the Mercer Island, Wash. police led to the present litigation.

After requesting the records, the alleged victim, Kim Koenig and local resident Lawrence Koss were given the records when the Pierce County court refused to grant an injunction forbidding their release. The court, however, held that the release of the records would violate Cain's right to privacy and ordered Koenig and Koss to return their copies.

After that ruling, Koenig, Koss and the two reporters requested access to the two reports in a different city who also withheld the records which led to a trial in a different county court. The four requesters were once again denied access to the report on privacy grounds. The cases were combined at the state supreme court level.

Both trial courts ruled that the reports were exempt under the personal information exemption to Washington's Public Records Act, which says that records of public employees may be withheld "to the extent that disclosure would violate their right to privacy." Cain argued that the records should also be exempt as investigative records.

The state Supreme Court ruled that the lower court findings that the personal information exemption applied to the reports in their entirety was "erroneous." To determine whether the exemption applies, the court held that a record must contain personal information, Cain must have a right to privacy in his identity, and disclosure must constitute a violation of that right to privacy.

The reports, the court held, constituted personal information, which the court had previously defined as "information relating to or affecting a particular individual, information associated with private concerns, or information that is not public or general." In addition, the court held that despite the public nature of the allegations against him and the media coverage of the claims, Cain still had a right to privacy in his identity in relation to the charges and the reports.

"An agency should look to the contents of the document, and not the knowledge of third parties when deciding if the subject of a report has a right to privacy in their identity," the court held.

The court held that disclosure of the reports with Cain's name redacted would not violate Cain's right of privacy. To violate those rights, the court held that the disclosed information must either be highly offensive and "not of legitimate concern to the public."

While the media coverage means that Cain will likely be inextricably identified with the records whether his name is redacted or not, the court held that this does not result in the exemption applying to the records as a whole.

"We recognize that appellants' request under these circumstances may result in others figuring out Officer Cain's identity," the court held. However, "[e]ven assuming that disclosure of any portion of these reports would reveal Office Cain's identity, we still must inquire into whether any portion of that information is a matter of legitimate public concern."

If the reports were released in their entirety, without Cain's name redacted, the court held that the release would be highly offensive and not of legitimate concern to the public because the public is "lacking a legitimate interest in the name of a police officer who is subject of an unsubstantiated allegation of sexual misconduct."

However, the rest of the reports reveal a great deal about how the police departments investigated the allegations. As such, releasing the reports without the accompanying name of the officer does have value to the public, the court held.

The court held that the investigative records exemption, while applicable, applies to the same information as the personal information exemption, therefore allowing only Cain's name and other identifying information to be withheld.

Four additional justices concurred in the opinion, arguing that the reports in their entirety — including Cain's name — should be released. To find otherwise, as the majority did, violates the spirit of the public records act, the court's chief justice wrote.

The concurrence argued that the personal information exemption applies only to "details of one's personal and private life." In that regard, the opinion states, the reports into Cain's alleged sexual misconduct while on the job "do not implicate Officer Cain's privacy interests."

"The embarrassment or negative attention that might be focused on him by disclosure of his identity would not arise because of disclosure of anything relating to his personal life or characteristics, but would be wholly concerned with the performance of public duties and allegations arising wholly in connection with those public duties," the opinion argued.

A ninth justice dissented, arguing that the records should be withheld in their entirety.