Predisik v. Spokane Sch. Dist. No. 81

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                 Fl LE




                     IN THE SUPREME COURT OF THE STATE OF WASHINGTON

              ANTHONY J. PREDISIK and     )
              CHRISTOPHER KATKE,          )                    No. 90129-5
                                          )
                          Petitioners,    )
                                          )                    EnBanc
                  v.                      )
                                          )
              SPOKANE SCHOOL DISTRICT NO. )
              81,                         )
                                          )                    Filed      APR 0 2 2015
                          Respondent.     )
              __________________________ )
                     Yu, J.-This case involves two public school employees who are on paid

              administrative leave while their employer investigates allegations of misconduct.

              We must decide if public records that reveal these investigations are occurring-

              but do not describe the allegations being investigated-implicate the employees'

              privacy rights under the Public Records Act (PRA), chapter 42.56 RCW. We hold

              they do not. Because no exemption applies to withhold the records from public

              inspection, we reverse and remand with instructions to order the records at issue

              disclosed in their entirety without redaction.
                                          
           Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

                                      FACTS AND PROCEDURAL HISTORY

                Anthony J. Predisik and Christopher Katke are longtime employees of the

          Spokane School District No. 81 (District). In late 2011 and early 2012, the District

          began to investigate Predisik and Katke after individuals made separate, unrelated

          allegations against the two employees. The substance behind those allegations is

          not in the record, but the District's investigations are apparently ongoing and

          entering their fourth year. The District placed Predisik and Katke on

          administrative leave and has paid salaries to both employees while it investigates.

                 In the spring of 2012, two media outlets submitted public records requests to

          the District. One request sought the "administrative leave letter given to Anthony

          Predisik, a Shadle Park High School counselor." Clerk's Papers at 50. The other

          request asked for "information on all district employees currently on paid/non-paid

          administrative leave." Id. at 331. The requests returned three public records

          relevant to this dispute.

                 The first record is Predisik's "administrative leave letter," a short letter

           informing Predisik that he has been placed on administrative leave "pending

           completion of the District's investigation into allegations of inappropriate

           interactions with a former student." Ex. P-1. It also tells Predisik he is banned

           from district property and from talking with students about the matter during the




                                                      2
                                                     
           Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

          investigation. The letter does not describe the allegations in any further detail and

          does not name Predisik's accuser.

                 The second and third records are spreadsheets that document the amount of

          leave pay Predisik and Katke had accumulated through April2012. Exs. P-2, P-3.

          The spreadsheets, one for each employee, contain columns for the employee's

          name, the date of pay, the hours paid, the rate of pay, and a position code. Id. The

          final column indicates the reason for leave, which is described generically for both

          Predisik and Katke as "[a]llegations currently under investigation." Id. Similar to

          the leave letter, the spreadsheets provide no further detail about the allegations or

          the accusers.

                  Predisik and Katke separately sued the District to enjoin disclosure of the

          leave letter and spreadsheets, alleging each record is exempt under the "[p]ersonal

          information" and "investigative" record exemptions ofRCW 42.56.230(3) and

           42.56.240(1 ). The District opposed the injunction and argued the leave letter and

           spreadsheets should be disclosed. 1 The trial court consolidated the two cases, and

           the parties filed cross motions for summary judgment. Citing our opinion in

           Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 189 P.3d

           139 (2008), the trial court found that Predisik's and Katke's identities, but not the



           1
            The two media entities that requested the records elected not to join this action, but the District
           adequately represents the public's interest in full disclosure.


                                                            3
                                          
              Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

              records themselves, were exempt from disclosure under RCW 42.56.230(3). The

              judge ordered all three records disclosed with Predisik's and Katke's names

              redacted. The Court of Appeals affirmed. Predisik v. Spokane Sch. Dist. No. 81,

              179 Wn. App. 513,319 P.3d 801 (2014).

                    We granted review to clarify when the PRA will recognize a right to privacy

              in the identity of a public employee who is the subject of an open investigation by

              his or her public employer. Predisik v. Spokane Sch. Dist. No. 81, 180 Wn.2d

              1021, 328 P.3d 903 (2014).

                                                   ANALYSIS

                    The PRA requires that agencies "shall make available for public inspection

              and copying all public records," subject only to a handful of statutory exemptions.

              RCW 42.56.070(1); see also Progressive Animal Welfare Soc 'y v. Univ. of Wash.,

              125 Wn.2d 243,260, 884 P.2d 592 (1994) (PAWS II). The PRA ensures the

              sovereignty of the people and the accountability of the governmental agencies that

              serve them by providing full access to information concerning the conduct of

              government. PAWS II, 125 Wn.2d at 251. To effectuate that policy, we start with

              the presumption that all public records are subject to disclosure. Agencies can

              withhold a record only if it falls within one of the PRA's specific, limited

              exemptions. RCW 42.56.070(1). These exemptions are narrow, and we apply

              them in favor of partial disclosure where possible since "the PRA's purpose of



                                                        4
                                        
           Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

          open government remains paramount." Resident Action Council v. Seattle Hous.

          Auth., 177 Wn.2d 417,432,327 P.3d 600 (2013); see also RCW 42.56.070(1)

          (requiring that agencies redact records only "[t]o the extent required to prevent an

          unreasonable invasion of personal privacy interests protected by [the PRA]" and

          produce the remainder of the record). Similarly, the PRA reminds us "that free and

          open examination of public records is in the public interest, even though such

          examination may cause inconvenience or embarrassment to public officials or

          others." RCW 42.56.550(3).

                Predisik and Katke argue that two of the PRA' s exemptions independently

          justify withholding the leave letter and spreadsheets from disclosure. First, the

          employees assert the records contain personal information, the disclosure of which

          would violate their rights to privacy. RCW 42.56.230(3). Second, they argue the

          records constitute investigative records that are essential to law enforcement. RCW

          42.56.240(1). We apply each exemption in turn.

             A. Personal information exemption

                 Predisik and Katke rely principally on RCW 42.56.230(3), which exempts

           from disclosure "[p]ersonal information in f1les maintained for employees ... of

          any public agency to the extent that disclosure would violate their right to

          privacy." Application of this exemption involves three separate questions: (1)

          whether the records contain personal information, (2) whether the employees have



                                                     5
                                              
              Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

              a privacy interest in that personal information, and (3) whether disclosure of that

              personal information would violate their right to privacy. Bellevue John Does, 164

              Wn.2d at 210. The first question is not in dispute. The leave letter and

              spreadsheets, which identify Predisik and Katke by name, contain "'personal

              information' [i.e., the employees' identities] because they relate to particular

              people." !d. at 211.

                    The existence of "personal information" in a public record is necessary to

              the exemption, but it is not sufficient alone to withhold the record. Employees

              must also demonstrate that they have a right to privacy in personal information

              contained in a record and if such a right exists, that disclosure would violate it.

              The personal information at issue here is Predisik's and Katke's identities when

              they are contained in public records disclosing that the District is investigating

              allegations of misconduct. So we next must decide whether the PRA grants public

              employees under investigation a right to privacy in their identities.

                     The statute's text offers little guidance to answer this question. Although the

              PRA expressly provides "the test for determining when the right to privacy is

              violated[, it] does not explicitly identify when the right to privacy exists."

              Bainbridge Island Police Guild v. City ofPuyallup, 172 Wn.2d 398, 412-13, 259

              P.3d 190 (2011) (footnote omitted) (citing Bellevue John Does, 164 Wn.2d at 212).

              We previously used principles of tort law to fill this definitional void and define



                                                         6
                                           
              Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

              the contours of the PRA's privacy right. In Hearst Corp. v. Hoppe, 90 Wn.2d 123,

              135, 580 P.2d 246 (1978), we concluded that the "right of privacy," as it is used in

              the PRA, means "what it meant at common law," and we adopted the definition in

              the Restatement (Second) o.f'Torts § 652D (1977) (§ 652D).

                    Therefore, a person has a right to privacy under the PRA only in '"matter[s]

              concerning the private life."' Id. at 135 (quoting§ 652D). To explain how that

              standard is applied in practice, we looked to theRestatement's summary of the

              right to privacy:

                           "Every individual has some phases of his life and his activities
                    and some facts about himself that he does not expose to the public eye,
                    but keeps entirely to himself or at most reveals only to his family or to
                    close personal friends. 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 man's life in his home, and some of his past history that he
                    would rather forget."
              Id. at 136 (quoting § 652D cmt. b, at 386). This comment "illustrates what nature

              ofj'acts are protected by this right to privacy," id. (emphasis added), and taken in

              context makes clear that the PRA will not protect everything that an individual

              would prefer to keep private. The PRA's "right to privacy" is narrower.

              Individuals have a privacy right under the PRA only in the types of "private" facts

              fairly comparable to those shown in the Restatement.

                     Using the Restatement as a rubric, we conclude that the PRA does not

              recognize a right of privacy in the mere fact that a public employer is investigating


                                                        7
                                            
              Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

              an employee. In so holding, we distinguish the investigation itself from the

              employee's conduct giving rise to that investigation. This difference, though

              subtle, is very important to the Restatement's privacy interest analysis. A public

              employer's investigation is certainly not a private matter: it arises exclusively from

              the employee's public employment. The investigation is simply an administrative

              process. It is not akin to a '"family quarrel[]'" or a "'humiliating illness[,]"' nor

              does it touch on the employee's "'life [at] home."' Id. (quoting§ 652D cmt. b, at

              386). To the contrary, the investigation relates to a part of the employee's life-

              his or her profession-that is freely exposed to the public. A public employer's

              investigation is an act of the government, not a closely held private matter that

              gives rise to a privacy right under the PRA.

                     We again contrast the employer's investigation, in which there is no privacy

              interest, with the allegations the employer is investigating. We acknowledge that

              such allegations may encompass some "past history that [the employee] would

              rather forget" and could come within that example or others in the Restatement that

              would implicate a privacy right under the PRA. But the mere fact there is an open

              investigation into allegations of misconduct is not, by itself: a reason to withhold a

              record from disclosure. Agencies and courts must review each responsive record

              and discern ti·om its four corners whether the record discloses factual allegations

              that are truly of a private nature, using the Restatement as a guide. Though there is



                                                          8
                                        
           Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

          an inherent degree of fact-finding in this analysis, a record-specific inquiry is the

          only way to adhere to the PRA's mandate that exemptions be construed narrowly.

          RCW 42.56.030.

                Applying this rule, we conclude that neither the leave letter nor the

          spreadsheets implicate a privacy right under the PRA. Those records disclose only

          that the District has opened an investigation and placed Predisik and Katke on

          leave during its pendency; the records do not disclose the factual allegations

          underlying that investigation. From these three records, the public learns only

          matters related to Predisik's and Katke's status as public employees and nothing

          about their personal lives. For the reasons we explain above, this information does

          not trigger a privacy interest under the PRA.

                Predisik and Katke argue our decision in Bellevue John Does requires we

          find a privacy interest here. We held in that case that teachers have a right to

          privacy in their identities in records related to unsubstantiated allegations, since in

          those instances "the fact of the allegation ... does not bear on the teacher's

          performance or activities as a public servant." 164 Wn.2d at 215. But as we

          explained, the existence of a privacy right under the PRA depends on the types of

          facts disclosed and is not amenable to a bright-line rule.

                 We do not find Bellevue John Does dispositive when applied to the records

          in this case and the limited, public nature of the facts those records disclose.



                                                     9
                                       
           Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

          Again, a public employer's investigation is a governmental act and a consequence

          of employment with the government. Unlike the records at issue in Bellevue John

          Does, the leave letter and spreadsheets do not disclose any salacious facts that one

          might consider a private matter. Indeed, the records contain no specific allegations

          of misconduct at all. It makes no difference if the allegations here are eventually

          substantiated because the records do not describe them.

                 We do not read Bellevue John Does to create a sweeping rule that exempts

          an employee's identity from disclosure any time it is mentioned in a record with

          some tangential relation to misconduct allegations. A rule that broad would justify

          withholding, or at least redacting, nearly every record created during the course of

          the District's investigation. Even Bellevue John Does recognizes the PRA entitles

          the public to "documents concerning the nature of the allegations and reports

          related to the investigation and its outcome." Id. at 221.

                 Because we hold that no right of privacy exists in the leave letter or

          spreadsheets, we need not decide if disclosure of those records would violate that

          right. See RCW 42.56.050 (providing the test for determining when disclosure

          violates the right to privacy if such a right exists). We observe, however, that the

          public has a legitimate concern in the identities of public employees who are the

           subject of investigations. The PRA is meant to engender the people's trust in their

           government. The recent unrest in Ferguson, Missouri, is an extreme example of



                                                    10
                                        
           Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

          how that trust is eroded when the public suspects the government is withholding

          information to protect its own. See, e.g., Tanzina Vega, Timothy Williams & Erik

          Eckholm, Emotions Flare in Missouri Amid Police Statements, N.Y.      TIMES   (Aug.

          15, 2014), available at www.nytimes.com/2014/08/16/us/darren-wilson-identified-

          as-officer-in-fatal-shooting-in-ferguson-missouri.html.

                 But secrecy can breed suspicion in more subtle ways, too. For example, if

          we accepted Predisik's and Katke's position, the public would never learn about an

          investigation unless and until the underlying allegations are substantiated at some

          point in the future. There would be no opportunity for the public to discover the

          District's ongoing three-year investigation, much less question the effectiveness of

          what some might consider an awfully long process. Government cannot be held

          accountable for actions it shields from the public's eye.

                 Public employees are paid with public tax dollars and, by definition, are

          servants of and accountable to the public. The people have a right to know who

          their public employees are and when those employees are not performing their

           duties. In sum, we hold there is no privacy right under the PRA in the mere fact

          that a public employer is investigating a public employee or in the employee's use

           of administrative leave. Both are simply functions of the government. Without

           such a privacy right, RCW 42.56.230(3) does not apply to exempt the leave letter

           or spreadsheets from disclosure.



                                                    11
                                           
          Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

                 B. Investigative record exemption

                      Predisik and Katke also argue that the investigative records exemption

              requires that the District withhold the three records. RCW 42.56.240(1 ). A record

              falling within this exemption must, among other requisites, "be essential to law

              enforcement or essential to the protection of privacy." Koenig v. Thurston County,

              175 Wn.2d 837, 843,287 P.3d 523 (2012) (citing Cowles Publ'g Co. v. State

              Patrol, 109 Wn.2d 712, 728, 748 P.2d 597 (1988)). The three records here are

              neither.

                      The leave letter and spreadsheets are not essential to law enforcement. Our

              decision in Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 795, 791 P.2d 526

              (1990), is dispositive. There we considered whether the superintendent of public

              instruction (SPI), who actually wields disciplinary authority over teaching

              credentials, performed law enforcement functions. We concluded the SPI could

              not rely on the investigative records exemption to withhold records because "it

              does not enforce law," and we rejected the agency's "attempt to characterize its

              supervision of its employees as law enforcement" activity under the exemption. !d.

              at 795-96. The District has even less investigative and disciplinary authority than

              the SPI, and its records similarly are not exempted under RCW 42.56.240(1 ).

                      Nor are the leave letter and spreadsheets essential to the protection of

              privacy. The PRA is consistent in its definition of "privacy," which is the same



                                                         12
                                            
          Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

              definition we announced in Hearst Corp. and applied above. RCW 42.56.050;

              LAWS OF    1987, ch. 403, § 1. As discussed in detail earlier, Predisik and Katke

              have no right to privacy in records disclosing only the fact that they are the

              subjects of an open investigation.

                                                   CONCLUSION


                      Public employees have no privacy right in the fact that they are being

              investigated by their public employer. The investigation is merely a status of their

              public employment, not an intimate detail of their personal lives, and without such

              a privacy right, RCW 42.56.230(3) and .240(1) are inapplicable. We reverse the

              Court of Appeals and remand with instructions to order the records at issue

              disclosed in their entirety without redaction.




                                                         13
                       
              Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5




              WE CONCUR:




                                                     ;.-:...,




                                             14
                                        
          Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)




                                                 No. 90129-5

                   FAIRHURST, J. (dissenting)-! dissent because Anthony J. Predisik and

          Christopher Katke (Employees) have a right to privacy in their identities. The

          Employees' right to privacy is violated if the records at issue are disclosed. However,

          such records can be redacted to protect the Employees' privacy interest. To reach a

          contrary result, the majority deviates from our precedent and creates a new rule.

                                                  ANALYSIS

                   The primary issue in this case is whether under the Public Records Act (PRA),

          chapter 42.56 RCW, the identities of the Employees are exempt from disclosure.

          The majority's holding that the Employees' identities are not exempt from disclosure

          is contrary to our case law. The question presented is resolved by our settled

          jurisprudence.

                   We have construed the PRA as "a strongly worded mandate for broad

          disclosure of public records." Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d

          246 (1978). The PRA protects the public's right to be informed of agency decisions.

                                                         1
                                        
          Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)

          RCW 42.56.030. To fully protect the public's interest, the PRA requires that its

          provisions be construed liberally and its exemptions be construed narrowly. !d.

          Unless a record falls within a specific PRA exemption or other statutory exemption,

          the PRA requires state and local agencies to disclose all public records upon request.

          RCW 42.56.070(1). If a portion of a record should be redacted or remain

          undisclosed, "an agency shall delete identifying details in a manner consistent with

          [the PRA] when it makes available or publishes any public record." !d. The agency

          must justify each redaction in writing. !d.

                   The Employees argue that two of the PRA's exemptions justify withholding

          the records in this case: (1) the personal information exemption, RCW 42.56.230(3),

          and (2) the investigative records exemption, RCW 42.56.240(1). We disagree with

          the majority's holding regarding the personal information exemption but agree with

          the majority's analysis and decision regarding the investigative records exemption.

          The Personal Information Exemption

                   The PRA exempts from disclosure "[p]ersonal information in files maintained

          for employees, appointees, or elected officials of any public agency to the extent that

          disclosure would violate their right to privacy." RCW 42.56.230(3). To determine

          if records constitute personal information exempt from disclosure, we use a three-

          part inquiry: ( 1) whether the allegations constitute personal information, (2) whether

          those claiming that the exemption applies have a right to privacy in their identities,

                                                         2
                                         
          Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)

          and (3) whether disclosure of the personal information would violate their right to

          privacy. Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199,

          209, 189 P.3d 139 (2008).

                   It is undisputed that the leave letter and the spreadsheets that identify the

          Employees by name constitute personal information. See id. at 211 ("The teachers'

          identities are 'clearly personal information' because they relate to particular

          people."); majority at 6. However, personal information is exempt from disclosure

          only to the extent that disclosure would violate the individual's right to privacy.

          Bellevue John Does, 164 Wn.2d at 212.

                   The right to privacy is intended to have the same meaning as it was given by

          this court in Hearst. Id. Hearst, 90 Wn.2d at 135-36, defined the "right to privacy"

          by looking to the common law tort of invasion of privacy and adopted the definition

          of "invasion of privacy" set forth in the Restatement (Second) of Torts § 652D

          ( 1977). According to the Restatement, '" [o]ne who gives publicity to a matter

          concerning the private life of another is subject to liability to the other for invasion

          of his privacy, if the matter publicized is of a kind that (a) would be highly offensive

          to a reasonable person and (b) is not of legitimate concern to the public."' Hearst,

          90 Wn.2d at 135-36 (quoting RESTATEMENT§ 652D).




                                                         3
 Predisikv.
                  
                   Spokane Sch.      
                                 Dist. No. 81, No. 90129-5                    
         Fairhurst, J. (dissenting)

         A.      The Employees Have a Right to Privacy in Their Identities

                 While the above definition describes when the right to privacy is violated, it

          does not define when the right to privacy exists. See Bainbridge Island Police Guild

          v. City of Puyallup, 172 Wn.2d 398, 412-13, 259 P.3d 190 (2011). We have stated

          that the right to privacy exists '"in matter[s] concerning the private life."' 1 Bellevue

          John Does, 164 Wn.2d at 212 (alteration in original) (internal quotation marks

          omitted) (quoting Hearst, 90 Wn.2d at 135). We have also noted that there is a right

          to privacy in unsubstantiated allegations. Morgan v. City ofFederal Way, 166 Wn.2d

          747, 756, 213 P.3d 596 (2009) ("Unsubstantiated allegations are exempt from

          disclosure.").

                 In Bellevue John Does we found that if "a complaint regarding misconduct

          during the course of public employment is substantiated or results in some sort of

          discipline, an employee does not have a right to privacy in the complaint." 164

          Wn.2d at 215. However, "[a]n unsubstantiated or false accusation of sexual

          misconduct is not an action taken by an employee in the course of performing public

          duties." !d. In Bellevue John Does, public school teachers sought to enjoin their

          respective school districts from releasing their names in response to a public records

          request. !d. at 205. The request was for all records relating to allegations of sexual



                 1
                The Restatement summarizes the right to privacy in comment b to § 652D, and this
          comment is cited on page 7 of the majority opinion.
                                                      4
   Predisikv.
                      
                      Spokane Sch.      
                                    Dist. No. 81, No. 90129-5
                                                                             
          Fairhurst, J. (dissenting)

          misconduct by teachers in the prior 10 years. !d. at 206. We held that the teachers

          had a right to privacy in their identities and ordered that the records could be

          disclosed only if the teachers' names were redacted. !d. at 215, 227. We noted that

          the unsubstantiated allegations of sexual misconduct that never resulted in any form

          of discipline were matters concerning the teachers' private lives and were not

          specific instances of misconduct committed while in the course of employment. !d.

          at 215. In our reasoning we noted that "[t]he fact of the allegation, not the underlying

          conduct, does not bear on the teacher's performance or activities as a public servant."

          !d. Moreover, we stated that "[t]he mere fact of the allegation of sexual misconduct

          toward a minor may hold the teacher up to hatred and ridicule in the community,

          without any evidence that such misconduct ever occurred." !d.

                  In Morgan, a post-Bellevue John Does decision, we held that the personal

          information exemption did not apply to the records at issue. Morgan, 166 Wn.2d at

          276. In Morgan, the judge argued that a report produced by the investigating attorney

          was exempt from disclosure because it contained unsubstantiated allegations that

          were highly offensive. !d. The report alleged that the judge created a hostile work

          environment by, among other things, angry outbursts and inappropriate gender-

          based comments. !d. In our reasoning, we first addressed whether the judge's right

          to privacy would be violated if the records were disclosed. We found that the

          allegations against the judge were not as offensive as allegations of sexual

                                                       5
   Predisikv.
                                                
                      Spokane Sch. Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)

          misconduct with a minor, like in Bellevue John Does, and would not be highly

          offensive if disclosed. Next, we stated that contrary to the judge's assertions, the

          allegations were not unsubstantiated. ld. The records at issue in Morgan evaluated

          the credibility of each person who made an allegation and found that the allegations

          were likely true. ld. We held that the judge did not have a right to privacy in the

          responsive records. Id.

                  Here, the question 1s whether the Employees, who are the subject of

          unsubstantiated allegations of misconduct, have a right to privacy in their identities.

          The administrative leave letter informed that Predisik was placed on administrative

          leave "pending completion of the District's investigation into allegations of

          inappropriate interactions with a former student." Ex. P-1. The leave slips indicate

          that the Employees are on leave for "[a]llegations currently under investigation."

          Exs. P-2, P-3. The documents provided no further information about the allegations

          or the accusers. Like Bellevue John Does and unlike Morgan, the allegations in the

          records are unsubstantiated and there is no evidence that the accusations resulted in

          any form of discipline. Because the allegations were unsubstantiated, they do not

          bear on the teachers' performance as public servants and do not inform the public of

          specific instances of misconduct during the course of employment. Therefore, the

          Employees have a right to privacy in their identities.



                                                     6
   Predisik
                v.                                        
                      Spokane Sch. Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)

                  The majority found that because the records did not disclose "salacious facts,"

          the records here are not comparable to those examined in Bellevue John Does.

          Majority at 10. The majority set forth a new rule that requires "[a]gencies and courts

          [to] review each responsive record and discern from its four corners whether the

          record discloses factual allegations that are truly of a private nature." !d. at 8.

          Applying this rule, the majority found that the records do not disclose private

          information about the employees because the records related only to the Employees'

          status as public employees. !d. at 9. The majority distinguished the "investigation

          itself from the employee's conduct giving rise to that investigation." Id. at 8.

          According to the majority, the fact that the investigation is occurring is not a private

          matter because it relates to a part of the Employees' lives that are freely exposed to

          the public. !d.

                  In reaching its conclusion, the majority disregards the fact that in Bellevue

          John Does we found that unsubstantiated allegations of misconduct are not actions

          taken by public employees during the course of performing public duties. 2 164

          Wn.2d at 215. Therefore, a public employee's identity when disclosed in connection

          with unsubstantiated allegations or evidence of pending investigations is not related


                  2
                   To support its reasoning, the majority seems to rely on principles from the dissent in
          Bellevue John Does. 164 Wn.2d at 234 (Madsen, J., dissenting) (noting that the teachers did not
          have a right to privacy because the allegations of specific instances of misconduct occurred while
          the employees were performing their public duties).

                                                          7
                                       
          Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)

          to his or her status as a public employee. This principle was derived from past

          precedent such as Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 725, 748

          P.2d 597 (1988). In Cowles, we noted that the right to privacy is not violated when

          a complaint about a specific instance of misconduct is substantiated, but where an

          investigation is pending, disclosure would result in a more intrusive invasion of

          privacy. The principle was reiterated in Morgan, where we noted that

          unsubstantiated claims of misconduct are exempt from disclosure. 166 Wn.2d at 756.

          B.        Disclosure of the Employees' Identities Would Violate Their Right to Privacy

                    Finding that the Employees have a right to privacy in their identities in

          connection with unsubstantiated claims of misconduct is not the end of the analysis.

          We next must consider whether the Employees' right to privacy would be violated

          by disclosure. "A person's 'right to privacy' ... is invaded or violated only if

          disclosure of information about the person: ( 1) Would be highly offensive to a

          reasonable person, and (2) is not of legitimate concern to the public." RCW

          42.56.050.

                    1.      Highly Offensive

                    While our cases do not define the term "highly offensive," we have addressed

          whether the disclosure of certain records would be highly offensive in several cases.

          In these cases we have noted that embarrassment alone is not sufficient for a record

          to be considered highly offensive. Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d

                                                         8
   Predisik
                v.    Sch.                    
                      Spokane       Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)

          995 (1993). In Bellevue John Does we found that disclosing the identities of teachers

          accused of sexual misconduct is highly offensive. 164 Wn.2d at 216. Outside the

          context of sexual misconduct allegations, we have held that disclosure of records

          that discuss employee performance but that do not discuss specific instances of

          misconduct, are presumed highly offensive. Dawson, 120 Wn.2d at 797. However,

          as noted above, in Morgan we found that specific, substantiated allegations of

          inappropriate behavior and outbursts were not as offensive as allegations of sexual

          misconduct. 166 Wn.2d at 756.

                  Here, the allegations were of inappropriate behavior with a former student.

          The spreadsheets also disclosed that both Employees were under investigation for

          allegations of misconduct. The records, like those in Dawson, did not state specific

          instances of misconduct but instead disclosed vague allegations. Unlike the

          allegations in Morgan, the records here did not include facts or credibility findings

          to substantiate the allegation of inappropriate behavior. As the Court of Appeals

          noted, unsubstantiated allegations of misconduct, other than sexual misconduct, can

          subject teachers to the same gossip and ridicule without actual evidence of

          wrongdoing. Predisik v. Spokane Sch. Dist. No. 81, 179 Wn. App. 513, 520, 319

          P.3d 801 (2014) (citing Bellevue John Does, 164 Wn.2d at 220-21). Although the

          allegations against the Employees were not sexual misconduct with a minor, the

          disclosure of one's identity associated with vague allegations and evidence of

                                                       9
 Predisikv.
                    Sch.
                    Spokane                      
                                  Dist. No. 81, No. 90129-5                  
          Fairhurst, J. (dissenting)

          pending investigations related to one's profession would be highly offensive to a

          reasonable person.

                  2.      Legitimate Public Concern

                  Since disclosure would be highly offensive, we must consider if there is a

          legitimate public concern in the identities of the Employees such that the records

          must be disclosed. The application of this exemption turns on whether the concern

          of the public is legitimate. Dawson, 120 Wn.2d at 798. The term "legitimate" in the

          context of the PRA means '"reasonable."' !d. If an allegation is unsubstantiated, the

          matter is not of public concern. Bellevue John Does, 164 Wn.2d at 221. Here, the

          public does not have a legitimate interest in the names of teachers who are under

          investigation for unsubstantiated allegations.

                  While there is not a legitimate public concern in the names of the teachers, the

          public does have a legitimate concern in the leave slip and the spreadsheet. As the

          Court of Appeals noted, the public has an interest in seeing that a government agency

          conducts itself fairly and uses funds responsibly. Predisik, 179 Wn. App. at 520.

                  In Bellevue John Does, we found that the teachers' names could be redacted

          to protect their privacy interests and such redaction would not harm the public

           oversight of agency conduct. 164 Wn.2d at 221-23 (noting that the identities of those

           accused of unsubstantiated allegations of misconduct does not aid in effective

           government oversight by the public). Furthermore, as the Court of Appeals noted,

                                                      10
   Predisikv.
                      Sch.                         
                      Spokane       Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)

          the leave slip and spreadsheets are not highly offensive when the identifying

          information is redacted. Predisik, 179 Wn. App. at 520. Therefore the records should

          be disclosed but with the identities of the teachers redacted.

                  The majority notes that there is a legitimate public interest in the identities of

          the Employees. Majority at 10. According to the majority, if we redact or withhold

          the records, the public would never find out about the investigation until the

          allegations were substantiated, and the public has a right to know about employees

          who are not performing their duties. Majority at 11. We generally agree. However,

          we can uphold both the privacy interest of the Employees and the public's interest

          in overseeing government actions by redacting the records. There is no evidence that

          the Employees were not performing their duties. See Bellevue John Does, 164 Wn.2d

          at 217 ("' [T]he public as a rule has no legitimate interest in finding out the names of

          people who have been falsely accused.'" (quoting Bellevue John Does 1-11 v.

          Bellevue Sch. Dist. No. 405, 129 Wn. App. 132, 155-57, 120 P.3d 616 (2005))). By

          redacting and releasing the documents, the public could learn of the ongoing

          investigation and question its effectiveness without violating the privacy of the

          Employees. See majority at 11.




                                                      11
   Predisikv.
                      
                      Spokane Sch.      
                                    Dist. No. 81, No. 90129-5
                                                                              
          Fairhurst, J. (dissenting)

                  3.      Redaction is Sufficient to Protect the Employees ' Privacy Interest

                  According to the Employees, the records in their entirety are exempt under

          the personal information exemption, RCW 42.56.230(3). The Employees contend

          that redaction is not sufficient to protect their privacy interest in their identities

          because the public records request specifically asked for records related to Predisik,

          and therefore the disclosure of records in response to that request necessarily links

          his identity to the material.

                  We have rejected similar arguments. See Koenig v. City of Des Moines, 158

          Wn.2d 173, 183-84, 142 P .3d 162 (2006). In Koenig we held that there is no statutory

          language or case law to support the argument that we should look beyond the record

          at issue to determine whether it is exempt from disclosure. Id. at 183. In Koenig we

          created a rule that agencies apply exemptions based only on the information the

          record discloses on its face without regard for the request. This rule creates a uniform

          disclosure system because it ensures that disclosure will not depend on how the

          request is made, but on the individual record at issue. Id.

                                               CONCLUSION

                  I would affirm the Court of Appeals. The Employees who are the subjects of

          unsubstantiated allegations and pending investigations have a right to privacy in

          their identities. This right is violated if the records at issue are disclosed in their

          entirety to the public. However, if the identities of the Employees are redacted from

                                                       12
                                         
          Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)

          the records, the Employees will not have a right to privacy in the records. Therefore,

          the records should be redacted and released. Because the majority finds that the

          Employees do not have a right to privacy in their identities and holds that the records

          at issue be disclosed in their entirety, I respectfully dissent.




                                                        13
                                
          Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5
          Fairhurst, J. (dissenting)




                                                         14