Predisik v. Spokane School District No. 81

Fairhurst, J.

¶27 (dissenting) — I 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 *910Employees’ privacy interest. To reach a contrary result, the majority deviates from our precedent and creates a new rule.

ANALYSIS

¶28 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.

¶29 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. 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. Id. 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.” Id. The agency must justify each redaction in writing. Id.

¶30 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

¶31 The PRA exempts from disclosure “[p]ersonal information in files maintained for employees, appointees, or *911elected 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, and (3) whether disclosure of the personal information would violate their right to privacy. Bellevue John Does v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 209, 189 P.3d 139 (2008).

¶32 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 904. 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.

¶33 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 Restatement (Second) of Torts § 652D (Am. Law Inst. 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).

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

¶34 While the above definition describes when the right to privacy is violated, it does not define when the right to *912privacy exists. See Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 412-13, 259 P.3d 190 (2011) (plurality opinion). We have stated that the right to privacy exists in “ ‘matter [s] concerning the private life.’ ”2 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 of Federal Way, 166 Wn.2d 747, 756, 213 P.3d 596 (2009) (“Unsubstantiated allegations are exempt from disclosure.”).

¶35 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.” Id. 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. Id. at 205. The request was for all records relating to allegations of sexual misconduct by teachers in the prior 10 years. Id. 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. Id. 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. Id. 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.” Id. Moreover, we stated that “[t]he mere fact of the allegation of sexual misconduct toward a minor may hold the teacher up to *913hatred and ridicule in the community, without any evidence that such misconduct ever occurred.” Id.

¶36 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 751-52. 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. Id. The report alleged that the judge created a hostile work environment by, among other things, angry outbursts and inappropriate gender-based comments. Id. 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 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. Id. The records at issue in Morgan evaluated the credibility of each person who made an allegation and found that the allegations were likely true. Id. We held that the judge did not have a right to privacy in the responsive records. Id.

¶37 Here, the question is 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]negations 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 *914servants 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.

¶38 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 907. The majority set forth a new rule that requires “[agencies 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.” Id. at 906. 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. Id. The majority distinguished the “investigation itself from the employee’s conduct giving rise to that investigation.” Id. at 905. 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. Id.

¶39 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.3 164 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 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) (plurality opinion). 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 *915more 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

¶40 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

¶41 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 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.

f 42 Here, the allegations were of inappropriate behavior with a former student. The spreadsheets also disclosed that *916both 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 pending investigations related to one’s profession would be highly offensive to a reasonable person.

2. Legitimate Public Concern

¶43 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.’ ” Id. 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.

¶44 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.

¶45 In Bellevue John Does, we found that the teachers’ names could be redacted to protect their privacy interests *917and 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, 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.

¶46 The majority notes that there is a legitimate public interest in the identities of the Employees. Majority at 907. 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. Id. at 908. 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 v. Bellevue Sch. Dist. No. 405, 129 Wn. App. 832, 853, 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 908.

3. Redaction Is Sufficient To Protect the Employees’ Privacy Interest

¶47 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 *918disclosure of records in response to that request necessarily links his identity to the material.

¶48 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

¶49 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 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.

Owens, Wiggins, and Gordon McCloud, JJ., concur, with Fairhurst, J.

The Restatement summarizes the right to privacy in comment b to § 652D, and this comment is cited on page 905 of the majority opinion.

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).