Fisher Broadcasting-Seattle TV LLC v. City of Seattle

Fairhurst, J.

¶47 (concurring in part/dissenting in part) — I agree with the majority that the trial court correctly concluded that the Seattle Police Department (SPD) did not violate the Public Records Act (PRA), chapter 42.56 RCW, by stating that it had no responsive records to Tracy Vedder’s request for “ ‘police officer’s log sheets.’ ” Majority at 522 (quoting Clerk’s Papers (CP) at 96). I also agree with the majority that the trial court correctly concluded SPD violated the PRA by stating that it had no responsive records to Vedder’s request for “ ‘a list of any and all digital in-car video/audio recordings.’ ”Id. at 523 (quoting CP at 98).

¶48 I disagree, however, with the majority’s conclusion that SPD violated the PRA by withholding the dashboard camera recordings requested by Vedder. The PRA requires state and local agencies to disclose public records upon request. An exemption to this requirement is a record that falls within an “other statute which exempts or prohibits disclosure of specific information or records.” RCW 42.56-.070(1). Under Washington’s privacy act, chapter 9.73 RCW, police dashboard video recordings are not available to the public “until final disposition of any criminal or civil litigation which arises from the event or events which were recorded.” RCW 9.73.090(1)(c). The majority finds that RCW 9.73.090(1)(c) is an other statute but interprets the *537prohibition found in RCW 9.73.090(l)(c) as “limited to cases where the videos relate to actual, pending litigation.” Majority at 526. While I agree that this provision creates an exemption to the PRA, I disagree with this limitation and rewriting of the statute. I would affirm the trial court on all grounds.

¶49 The PRA is 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 requires all state and local agencies to “make available for public inspection and copying all public records, unless the record falls within the specific exemptions of [the PRA] or other statute which exempts or prohibits disclosure of specific information or records.” RCW 42.56.070(1). That is to say, RCW 42.56.070(1) “incorporates into the [PRA] other statutes which exempt or prohibit disclosure of specific information or records” and that supplement, or do not conflict with, the PRA. Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 261-62, 884 P.2d 592 (1994) (citing former RCW 42.17.260(1) (1992), recodified as RCW 42.56-.070, Laws of 2005, ch. 274, § 103).

¶50 RCW 9.73.090(1)(c) specifically prohibits disclosure of video recordings to “the public” and prohibits disclosure to the public “until final disposition of any criminal or civil litigation.”11 See WAC 44-14-06002(1) (distinguishing “exemption” from “prohibit[ion]” on the grounds that an agency has the discretion to disclose exempt public records, but an agency has no discretion to disclose records that are confidential or prohibited from disclosure). RCW 9.73.090(1)(c) does not conflict with the PRA and prohibits disclosure of specific public records in their entirety. Thus, we agree with the majority that RCW 9.73.090(1)(c) is an other statute *538that operates as an exception to the PRA, prohibiting disclosure of in-car law enforcement video recordings.

¶51 However, we disagree with the majority as to the scope of the exemption. The majority limits the prohibition to “cases where the videos relate to actual, pending litigation.” Majority at 526. The majority imposes this limitation citing the proposition that an exemption or disclosure prohibition found in a supplemental statute should be narrowly interpreted to maintain the PRA’s goal of free and open examination of public records. Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 386-87, 314 P.3d 1093 (2013). While we agree that a court should interpret other statute exemptions narrowly, the court must still interpret the other statute in good faith and may not impose an improperly narrow interpretation simply to reach a desired result. The majority improperly interprets the exemption too narrowly, essentially rewriting the statute in a way that is contrary to legislative intent and the statutory language itself.

¶52 “The goal of statutory interpretation is to discern and implement the legislature’s intent.” State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007) (citing State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). “In interpreting a statute, this court looks first to its plain language.” Id. “If the plain language of the statute is unambiguous, then this court’s inquiry is at an end.” Id. We need not go beyond the plain language in this case to see the majority’s limitation of the prohibition to “actual, pending litigation” is unduly narrow. Majority at 526.

¶53 The language of RCW 9.73.090(1)(c) prohibits disclosing the video recordings to the public until “final disposition of any criminal or civil litigation.” “Final disposition” could mean entry of final judgment by a trial court or the exhaustion of appellate remedies. Id. Litigation might also be final when the possibility of litigation is foreclosed by a statute of limitations or other procedural mechanism. Although “final disposition” can be “reasonably interpreted in more than one way,” it is not ambiguous *539“simply because different interpretations are conceivable.” State v. Watson, 146 Wn.2d 947, 955, 51 P.3d 66 (2002) (citing State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001)).

¶54 The meaning of “any” is clearer. The word “any” has been given broad and inclusive connotations. State v. Sutherby, 165 Wn.2d 870, 880-81, 204 P.3d 916 (2009) (citing Rosenoff v. Cross, 95 Wash. 525, 527, 164 P. 236 (1917)); State ex rel. Evans v. Bhd. of Friends, 41 Wn.2d 133, 145, 247 P.2d 787 (1952) (the state constitution’s prohibition on legislative authority to authorize any lottery or grant any divorce was unambiguously phrased in the broadest sense). The word is not limited by specific reference to a point in time. Rosenoff, 95 Wash. at 528 (“The words ‘theretofore’ and ‘any’ are broad and inclusive as to time and subject-matter. They negat[e] any intention to make only the violation of existing law a disqualification.”). The meaning of the phrase “any order” has been held to be “ ‘so plain as to admit of no argument as to the[ ] meaning.’ ” State ex rel. Tacoma E. R.R. v. Pub. Serv. Comm’n, 102 Wash. 589, 591, 173 P. 626 (1918) (quoting State ex rel. Great N. Ry. v. Pub. Serv. Comm’n, 76 Wash. 625, 627, 137 P. 132 (1913) (citing State ex rel. R.R. Comm’n v. Or. R.R. & Navigation Co., 68 Wash. 160, 123 P. 3 (1912))). In State ex rel. Tacoma Eastern Railroad, we emphasized that “any” must mean “all” because if it meant anything less, the legislature would have said as much. 102 Wash. at 591-92 (“[W]e are constrained to hold that the legislature, in using the words ‘any order,’ meant all orders, unless they had specifically excepted therefrom certain orders or class of orders in the foregoing statutes.”). This case law demonstrates that there is a uniform, consistent, and thus plain meaning for the widely used term “any.” So we reaffirm Washington precedent and interpret “ ‘any' to mean ‘every’ or ‘all.’ ” Sutherby, 165 Wn.2d at 881 (internal quotation marks omitted) (quoting State v. Smith, 117 Wn.2d 263, 271 & n.8, 814 P.2d 652 (1991)); State v. Westling, 145 Wn.2d *540607, 611, 40 P.3d 669 (2002); Smith, 117 Wn.2d at 271 (“Washington courts have repeatedly construed the word ‘an/ to mean ‘every’ and ‘all.’ ”).

¶55 Although the “final disposition” language can be reasonably interpreted in more than one way, none of those ways equate “any” to “actual” and “pending” litigation. Furthermore, the stated purpose of RCW 9.73.090(1)(c) is to prohibit the disclosure of police dashboard video recordings. Requiring law enforcement to publicly disclose dashboard video recordings upon request — except when there is actual, pending litigation — is directly in contradiction to the purpose and language of the statute, i.e., to prohibit public disclosure until final disposition of any criminal or civil litigation. Under the majority’s theory, one need only ask for the recordings the day before filing the suit when there was no actual or pending litigation, which would obliterate the purpose of the statute. This court must enforce statutes “in accordance with [their] plain meaning,” and the plain meaning does not limit disclosure only to cases with filed lawsuits. Armendariz, 160 Wn.2d at 110.

¶56 Washington’s privacy act aims to protect citizens from having their private conversations recorded without their consent. See RCW 9.73.030. However, the legislature carved out some exceptions to this rule, including allowing police officers to record interactions with citizens with an in car video camera. RCW 9.73.090. In the same provision where it created the exception to the privacy act, the legislature included language preventing such videos from public disclosure. The plain interpretation of this language in the context of the privacy act is that the legislature created the exception to retain some of the privacy rights of the citizen who was videotaped by the police. The majority insists that the real legislative goal was to protect the integrity of law enforcement investigations and court proceedings but makes this inference from looking at the historical development of the provision. Majority at 527-28. When the plain reading of a statute is clear, inferences and *541historical trends have no place. See Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-11, 43 P.3d 4 (2002). An intent to exclude these videos from disclosure to retain the privacy of the citizens is clear from the text of the present statutory scheme, and the inquiry should end there.

¶57 The trial court and KOMO expressed concern about SPD’s policy of destroying dashboard video recordings after three years — the same length of time as the statute of limitations for civil tort claims. It is conceivable that under this policy, SPD could destroy a recording before the recording would be subject to disclosure under RCW 9.73-,090(1)(c). This hypothetical situation is not enough, however, to make RCW 9.73.090(1)(c) ambiguous. See Watson, 146 Wn.2d at 955 (The courts “are not ‘obliged to discern any ambiguity by imagining a variety of alternative interpretations.’ ” (internal quotation marks omitted) (quoting State v. Keller, 143 Wn.2d 267, 276-77, 19 P.3d 1030 (2001))). Moreover, KOMO’s concerns are unfounded because, under RCW 42.56.100, an agency is prohibited from destroying records scheduled for destruction if the agency receives a public record request “at a time when such record exists.” If such a request is made, the agency “may not destroy or erase the record until the request is resolved.” Id.; see also O’Neill v. City of Shoreline, 170 Wn.2d 138, 149, 240 P.3d 1149 (2010) (“[T]he PRA does not allow agencies to destroy records that are subject to a pending records request.”). Nothing prevents KOMO from making a public records request and from eventually obtaining dashboard video camera recordings. But KOMO, like other members of the public, must adhere to the delayed disclosure requirements of RCW 9.73.090(1)(c).

¶58 RCW 9.73.090 is an other statute that operates as an exemption to the PRA. The plain language of this statute instructs that in car video recordings should not be released to the public until final disposition of any criminal or civil litigation. The SPD retains any video that might be the subject of litigation for three years, and if no litigation has *542been filed by that time, the video may be destroyed. The legislature has determined that three years is sufficient time either for litigation to be commenced or for the SPD to be sure none will be filed regarding that video. Since the statute plainly requires any litigation regarding an in car video to be final before any public disclosure, this three year time period is a logical application that ensures compliance with the statute.

CONCLUSION

¶59 RCW 9.73.090(1)(c) is an other statute that exempts or prohibits public disclosure of specific information. RCW 9.73.090(1)(c) is not in conflict with the PRA and specifically prohibits public disclosure of police dashboard video camera recordings in their entirety until final disposition of any criminal or civil litigation. The majority’s overly narrow interpretation of RCW 9.73.090(1)(c) is contrary to the legislature’s intent to prohibit public disclosure of police dashboard video camera recordings until final disposition of any criminal or civil litigation, which is clear from the plain language of the statute. Although “final disposition” has a couple of reasonable interpretations, no interpretation supports concluding that it means “actual, pending litigation.” Majority at 526.1 would affirm the trial court’s conclusion that SPD did not violate the PRA by withholding the video recordings requested by Vedder.

Madsen, C.J., and Owens and Wiggins, JJ., concur with Fairhurst, J.

While RCW 9.73.090(1)(c) prohibits disclosure to the public, it does not prohibit disclosure of police dashboard video camera recordings to “all parties involved in ... litigation [relating to the substance of the recording]” or disclosure “pursuant to a court order.” Majority at 526 n.4. I would add that if criminal charges are brought against the subjects of such videos, police are required to make such videos available to the subject’s counsel under RCW 9.73.100.