Sargent v. Seattle Police Dept.

J.M. Johnson, J.

¶49 (dissenting) — The majority’s erosion of the effective law enforcement exemption to the Public Records Act (PRA),4 chapter 42.56 RCW, threatens the efficacy of open and active criminal investigations. Rather than focusing limited resources and manpower on protecting the public, law enforcement must now divert efforts toward justifying the exemption of sensitive records in ongoing investigations. This flies in the face of Newman 5 which explicated the PRA exemption in RCW 42.56.240(1) and expressly recognized that law enforcement agencies— not courts — are best suited to decide which information could compromise an investigation if released too early. Because the majority is most certainly out of step with Newman’s analysis of the PRA and Newman’s progeny, I dissent.

¶50 The majority’s application of Newman undermines a common law enforcement investigation procedure that is a necessary tool for the enforcement of our criminal code. When a criminal suspect is arrested without a warrant, the charges must be filed with the prosecutor’s office within 48 hours. See CrR 3.2.1 (requiring a judicial determination of probable cause within 48 hours after arrest, unless probable cause was determined prior to arrest). This practice is known as “rush filing.” In such situations, the case is referred to prosecutors who may prosecute or initially decline to prosecute while returning the case to law enforcement for further investigation. See Clerk’s Papers (CP) at 141-42.

¶51 The main issue before us is whether the investigative records exemption to the PRA permanently expires when the case is first referred to a prosecutor or if the exemption resumes in the event that the prosecutor requests more investigation. The majority holds that even where the initial investigation must occur within 48 hours, *404the categorical exemption for open and active investigations expires once a case is referred to a prosecutor for a charging decision. The majority applies this rule even where, as here, the prosecutor sends the case back to law enforcement for further investigation before an informed charging decision can be made. This hinders the use of one effective law enforcement procedure.

¶52 It is arbitrary to draw the line at the first referral to the prosecutor when the substance of the investigation cannot possibly be done within 48 hours. It is far more sensible to draw the line at the end of the executive branch’s involvement with the case, when the investigation is truly closed. See Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 483-84, 987 P.2d 620 (1999) (Talmadge, J., concurring). That is likely what the legislature intended.

¶53 I would hold that Newman’s categorical investigative records exemption to the PRA does not permanently expire once the case is first referred to a prosecutor. Rather, the exemption may renew in the event that the prosecutor requests further investigation from law enforcement. The Seattle Police Department (SPD) did not violate the PRA by withholding records of an investigation referred to a prosecutor’s office for an immediate charging decision because the exemption was renewed when the prosecutor requested additional investigation. I would further hold that the investigative records exemption to the PRA applies to law enforcement internal disciplinary investigations. The majority’s holdings are based on improperly narrow readings of Newman and Cowles. Limiting the categorical exemption in such a way fails to account for the necessities of effective law enforcement practices.

*405Analysis

A. Newman's Categorical Investigative Records Exemption under RCW 42.56.240(1) May Renew in the Event That the Prosecutor Requests Further Investigation

¶54 Pursuant to RCW 42.56.240, certain public records are exempt from production when it would hinder effective law enforcement or encroach on privacy:

The following investigative, law enforcement, and crime victim information is exempt from public inspection and copying under this chapter:
(1) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy.

¶55 In Newman, 133 Wn.2d 565, this court considered whether documents within an open and active criminal investigation file are categorically exempt from production under the PRA as essential to effective law enforcement. Newman involved a journalist’s public records requests for files in the ongoing police investigation into the 1969 murder of civil rights leader Edwin Pratt. Id. at 568. We held that

the broad language of the statutory exemption requires the nondisclosure of information compiled by law enforcement and contained in an open and active police investigation file because it is essential for effective law enforcement. The language of the statute provides for a categorical exemption for all records and information in these files.

Id. at 574. We emphasized the necessity of a categorical exemption because “[Requiring a law enforcement agency to segregate documents before a case is solved could result in the disclosure of sensitive information.” Id. We noted that *406“[t]his exemption allows the law enforcement agency, not the courts, to determine what information, if any, is essential to solve a case.” Id.

¶56 Today’s majority holds that under the limitations of Newman imposed by Cowles, Newman’s broad categorical exemption must end when police first refer an investigation to a prosecutor for a charging decision. This unnecessarily rigid reading of Cowles fails to account for the realities of law enforcement investigations and will most certainly operate to harm sensitive investigations. These costs will be imposed without commensurate benefits to government accountability. I am not advocating for a rule under which the records are forever shielded from public scrutiny; such a rule is unsupported by language in the PRA. It is not a matter of if the records may be disclosed to the public, but when.

¶57 In Cowles, a newspaper publisher brought suit to compel production of a police incident report and booking photograph after a suspect had been arrested and the case was referred to a prosecutor for a charging decision. We distinguished the facts from Newman on the basis that the investigation in Cowles was no longer open and active. Cowles, 139 Wn.2d at 477-78. We noted that when a suspect is arrested and the case is referred to a prosecutor for a charging decision, “the risk of inadvertently disclosing sensitive information that might impede apprehension of the perpetrator no longer exists.” Id. We ultimately held that “in cases where the suspect has been arrested and the matter referred to the prosecutor, any potential danger to effective law enforcement is not such as to warrant categorical nondisclosure of all records in the police investigative file.” Id. at 479. After referral, the exemption must be justified on a case-by-case basis. Id. at 479-80.

¶58 This case, which involved “rush filing” and a request to law enforcement for further investigation, is distinguishable from Cowles, in which we held that Newman’s categorical exemption expires when a suspect is arrested and the *407case is referred to the prosecutor. Id. at 479. In Cowles, the subject of the PRA request was arrested and the Spokane Police Department referred the case to the prosecutor the same day, requesting that charges be filed. Id. at 474-75. The investigation was no longer open and active, as the case had been referred to the prosecutor for a final charging decision. No further investigation was required.

¶59 Here, the case was referred to prosecutors twice. The investigation remained open and active after first referral to the prosecutor. Given the complicated set of circumstances surrounding this case, law enforcement could not possibly visit the location of the incident, interview all the witnesses, and take statements from both parties within a 48 hour period. Further investigation was necessary. The case was referred to prosecutors a second time after a thorough investigation, at which time prosecutors declined to file charges. Under this set of facts, it would be contrary to Newman and Cowles to hold that the categorical statutory exemption for information essential to effective law enforcement, RCW 42.56.240(1), expires upon the initial referral to prosecutors.

¶60 The concurring opinion in Cowles foresaw the need for the progression in our case law that we face today:

[S] imply submitting an investigation to a prosecutor for a charging decision does not always end the investigation. The prosecuting authority, whether a city attorney’s office or a county prosecuting attorney’s office, must then decide whether there is a sufficient basis to file criminal charges. If the prosecuting authority determines there is an insufficient factual or legal basis to file charges, the case is clearly neither solved nor closed. ... At that point, further investigation is required and the whole purpose for the exemption discussed in Newman applies.

139 Wn.2d at 484 (Talmadge, J., concurring). Justice Talmadge’s concurrence presciently warned the court that the controversy before us could one day arise. Nonetheless, the facts in Cowles were sufficiently distinct from the *408concerns raised by Justice Talmadge to warrant leaving the issue open for another day. That day has come, and unfortunately, the majority opinion has failed to recognize Cowles’ need to protect “effective law enforcement” procedures.

¶61 As Justice Talmadge pointed out in his Cowles concurrence, “[t]he appropriate line of demarcation for determining when a case is closed or solved is the point at which the executive branch of government has essentially concluded its involvement with the case.” Id. at 483-84. I emphatically agree. Any other reading of Newman and Cowles fails to account for the gap created between the two cases. Not all law enforcement practices fit neatly in one category or the other; accordingly, Newman and its progeny must be read flexibly to account for varying circumstances arising from law enforcement investigatory practices.

¶62 Furthermore, holding that the exemption must expire upon first referral to a prosecutor’s office would lead to perverse and potentially devastating consequences. Under such a scenario, a criminal could be arrested and released, then submit a PRA request in order to gather information for use in destroying evidence or coercing witnesses. This certainly would not support the balance between open government and upholding the integrity of police investigations struck by the PRA and our case law.

¶63 As Justice Talmadge noted in his Cowles concurrence:

The better point at which to say the case is “closed” is when the prosecuting authority has determined to file charges, as our earlier cases indicate. At that time, the case is essentially solved or closed from the perspective of the executive branch— the law enforcement agencies and the prosecuting authorities. The case is then within the province of the judicial branch of government, and it is no longer appropriate for the statutory exemption to apply. The broad policy of public disclosure . . . must then control.

*409Cowles, 139 Wn.2d at 484-85. I would hold that it is essential to effective law enforcement that investigative records remain categorically exempt in this limited circumstance where the case has been declined for prosecution, the investigation is open and active, and enforcement proceedings are contemplated when the PRA request is received. The Court of Appeals properly rejected Evan Sargent’s argument that SPD’s “rush filing” with the King County prosecuting attorney terminated the criminal investigation for the purposes of the “effective law enforcement” exemption of RCW 42.56.240(1).

B. Newman’s Categorical Investigative Records Exemption Applies to Open and Active Internal Disciplinary Investigations

¶64 On February 5, 2010, Sargent made his only request for the internal disciplinary investigation file of Officer Waters. CP at 41-42. The files were withheld as exempt, and the investigation remained open and active until April 30, 2010. CP at 145. The trial court did not require the production of the internal disciplinary file. CP at 365. The Court of Appeals affirmed, recognizing that Newman’s “reasoning applies equally to disciplinary investigations.” Sargent v. Seattle Police Dep’t, 167 Wn. App. 1, 22, 260 P.3d 1006 (2011).

¶65 I agree. In Koenig v. Thurston County, 175 Wn.2d 837, 843, 287 P.3d 523 (2012) (quoting Columbian Publ’g Co. v. City of Vancouver, 36 Wn. App. 25, 31, 671 P.2d 280 (1983)), we explained that to fall under the Newman exemption, “[t]he investigation must be ‘one designed to ferret out criminal activity or to shed light on some other allegation of malfeasance.’ ” Internal disciplinary investigations into police misconduct are most certainly designed to accomplish these goals. The Newman exemption for open and active investigations should apply to internal disciplinary investigations such as this one. Because Sargent never resubmitted a PRA request after the investigation was *410closed on April 30, the SPD was under no obligation to produce the internal disciplinary investigative records regarding Officer Waters.

Conclusion

¶66 I would affirm the Court of Appeals’ holding that the SPD did not violate the PRA by withholding records of a criminal investigation referred to a prosecutor’s office for a potential “rush filing” charging decision but returned by the prosecutor for more investigation before filing. Investigative records should be categorically exempt from production where the case has been declined for prosecution, the investigation is open and active, and enforcement proceedings are contemplated when the request is received. I would further affirm the Court of Appeals’ holding that RCW 42.56.240, the investigative records exemption to the PRA, applies to law enforcement internal disciplinary investigations. Newman, as limited by Cowles, strikes a balance between promoting government accountability and furthering sensitive law enforcement investigations. I fear that today’s majority unsettles this balance in such a way that puts the public at risk through compromised law enforcement investigations.

Owens, Fairhurst, and Wiggins, JJ., concur with J.M. Johnson, J.

RCW 42.56.240(1).

Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997).