What Records Are Exempt From a Freedom of Information Act Request?
Full Question:
Answer:
The answer will depend on whether the agency is a party to a lawsuit or not. Please see the following information from http://www.rcfp.org/ogg/index.php?op=browse&state=WA on exempt investigative records which are not subject to disclosure to determine applicability:
This exemption applies to specific investigative records, the nondisclosure of which is essential to law enforcement or to protect a person's right to privacy. RCW 42.17.310(1)(d) (recodified as RCW 42.56.240(1), eff. 7/1/06). It covers only ongoing investigations, Ashley v. Public Disclosure Comm'n, 16 Wn. App. 830, 560 P.2d 1156, review denied, 89 Wn.2d 1010 (1977), and once the investigation is complete, the records are open. Hearst, 90 Wn.2d 123. Reports generated as part of routine administrative procedure, not as the result of a specific complaint or allegation of misconduct, are not "investigative reports." Cowles Publishing Co. v. City of Spokane, 69 Wn. App. 678, 683, 849 P.2d 1271 (police reports regarding contact by any K-9 dog with citizen, generated as matter of course, are not investigative records), review denied, 122 Wn.2d 1013, 863 P.2d 73 (1993). Reports which could trigger an investigation and imposition of sanctions if warranted, but which are not themselves used for "law enforcement" are not exempt. Id. at 684.
The courts recently broadened and then narrowed this exemption. The state supreme court created a categorical exemption for "open and active" police investigation files. Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997). The court reasoned that it should defer to investigators in situations where disclosure of any materials could jeopardize the ability to solve a case. Id. The court subsequently has limited the reach of Newman's categorical exemption. The court held that a categorical exemption only exists for "information contained in an open, active police investigation file." Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998) (refusing to extend a categorical exemption to work product materials under RCW 42.17.310(1)(j) (recodified as RCW 42.56.290, eff. 7/1/06). The court, not the agency, is to determine "what constitutes an open file." Id.
The court further limited the concept of categorical exemptions in Cowles Pub'g Co. v. Spokane Police Dep't, 139 Wn.2d 472, 987 P.2d 620 (1999). The court refused to apply the exemption to files concerning investigations referred to the prosecutor's office, even if the files remained technically open. Id. The records, unlike those in Newman, were no longer "critical to solving the case." Id.
The "right to privacy" refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.17.255 (recodified as RCW 42.56.050, eff. 7/1/06); Hearst, 90 Wn.2d 123. In a torturous opinion, a Washington court has held that whether statements in public records are "true" bears on whether the records are of legitimate concern to the public. City of Tacoma v. Tacoma News Inc., 65 Wn. App. 140, 827 P.2d 1094, review denied, 119 Wn.2d 1020, 838 P.2d 692 (1992) (police records of investigation based on unsubstantiated allegation of child abuse against political candidate not of legitimate public concern). But see Hudgens v. City of Renton, 49 Wn. App. 842, 746 P.2d 320 (1987) (arrest report, citation, and patrol report must be disclosed despite acquittal), review denied, 110 Wn.2d 1014 (1988).
Criminal records on charges that have not resulted in conviction or other adverse disposition and for which formal proceedings are over are closed to the public. RCW 10.97.050, .030(2). Internal police investigations are considered exempt, even though no criminal charges are involved and no right to privacy is violated. The Washington Supreme Court has said that public disclosure of such investigations would render law enforcement ineffective. Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597, reconsideration denied (Mar. 7, 1988). Nevertheless, an investigative report concerning liquor law violations at a Police Guild party is not exempt on grounds that public disclosure would render law enforcement ineffective or violate the officers' privacy. Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 769 P.2d 283, reconsideration denied (Apr. 14, 1989). In addition, internal investigation records are not exempt if requested as part of the discovery process, because a trial court can craft a protective order to alleviate law enforcement concerns. State v. Jones, 96 Wn. App. 369, 979 P.2d 898 (1999).
If an agency is a party to a lawsuit, it may withhold any records relevant to that suit that would be protected under rules of pretrial discovery. RCW 42.17.310(1)(j) (recodified as RCW 42.56.290, eff. 7/1/06). Civil, rather than criminal, discovery rules apply. Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998). This exemption applies to "reasonably anticipated litigation," id. at 791, and to records created to evaluate an agency's potential liability, Overlake Fund v. City of Bellevue, 70 Wn. App. 789, 794, 855 P.2d 706 (1993), review denied, 123 Wn.2d 1009, 869 P.2d 1084 (1994), but it does not apply where the records may only have some possible relevance to a future hypothetical dispute with a third party. Yakima Newspapers Inc. v. City of Yakima, 77 Wn. App. 319, 325, 890 P.2d 544 (1995). As reflected in the work product rule, the exemption also applies after the termination of litigation. Dawson, 120 Wn.2d at 790. A settlement agreement is not protected under the work product rule and, thus, this exemption, because it is not prepared in anticipation of litigation but in an attempt to conclude litigation. Yakima Newspapers, 77 Wn. App. at 326-27. The courts have refused to create a blanket work product exemption to everything in a prosecutor's litigation file. Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998).
Please see the following WA statutes:
Sec. 2 RCW 42.56.240 and 2008 c 276 s 202 are each amended to read as
follows:
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;
(2) Information revealing the identity of persons who are witnesses
to or victims of crime or who file complaints with investigative, law
enforcement, or penology agencies, other than the commission, if
disclosure would endanger any person's life, physical safety, or
property. If at the time a complaint is filed the complainant, victim, or
witness indicates a desire for disclosure or nondisclosure, such desire
shall govern. However, all complaints filed with the commission about any
elected official or candidate for public office must be made in writing
and signed by the complainant under oath;
(3) Any records of investigative reports prepared by any state,
county, municipal, or other law enforcement agency pertaining to sex
offenses contained in chapter 9A.44 RCW or sexually violent offenses as
defined in RCW 71.09.020, which have been transferred to the Washington
association of sheriffs and police chiefs for permanent electronic
retention and retrieval pursuant to RCW 40.14.070(2)(b);
(4) License applications under RCW 9.41.070; copies of license
applications or information on the applications may be released to law
enforcement or corrections agencies;
(5) Information revealing the identity of child victims of sexual
assault who are under age eighteen. Identifying information means the
child victim's name, address, location, photograph, and in cases in which
the child victim is a relative or stepchild of the alleged perpetrator,
identification of the relationship between the child and the alleged
perpetrator; and
(6) The statewide gang database referenced in RCW 43.43.762; and
(7) Information submitted to the statewide unified sex offender
notification and registration program under RCW 36.28A.040(6) by a person
for the purpose of receiving notification regarding a registered sex
offender, including the person's name, residential address, and e-mail
address.
RCW 42.56.290 Records that are relevant to a controversy to which an agency
is a party....
Records that are relevant to a controversy to which an agency is a
party but which records would not be available to another party under the
rules of pretrial discovery for causes pending in the superior courts are
exempt from disclosure under this chapter.
RCW 42.56.070 (1) Each agency, in accordance with published rules, shall
make available....
(1) Each agency, in accordance with published rules, shall make available
for public inspection and copying all public records, unless the record
falls within the specific exemptions of
[*] subsection (6) of this section, this chapter, or other statute which
exempts or prohibits disclosure of specific information or records. To the
extent required to prevent an unreasonable invasion of personal privacy
interests protected by this chapter, an agency shall delete identifying
details in a manner consistent with this chapter when it makes available or
publishes any public record; however, in each case, the justification for
the deletion shall be explained fully in writing.
(2) For informational purposes, each agency shall publish and maintain a
current list containing every law, other than those listed in this chapter,
that the agency believes exempts or prohibits disclosure of specific
information or records of the agency. An agency's failure to list an
exemption shall not affect the efficacy of any exemption.
(3) Each local agency shall maintain and make available for public
inspection and copying a current index providing identifying information as
to the following records issued, adopted, or promulgated after January 1,
1973:
(a) Final opinions, including concurring and dissenting opinions, as well
as orders, made in the adjudication of cases;
(b) Those statements of policy and interpretations of policy, statute,
and the Constitution which have been adopted by the agency;
(c) Administrative staff manuals and instructions to staff that affect a
member of the public;
(d) Planning policies and goals, and interim and final planning
decisions;
(e) Factual staff reports and studies, factual consultant's reports and
studies, scientific reports and studies, and any other factual information
derived from tests, studies, reports, or surveys, whether conducted by
public employees or others; and
(f) Correspondence, and materials referred to therein, by and with the
agency relating to any regulatory, supervisory, or enforcement
responsibilities of the agency, whereby the agency determines, or opines
upon, or is asked to determine or opine upon, the rights of the state, the
public, a subdivision of state government, or of any private party.
(4) A local agency need not maintain such an index, if to do so would be
unduly burdensome, but it shall in that event:
(a) Issue and publish a formal order specifying the reasons why and the
extent to which compliance would unduly burden or interfere with agency
operations; and
(b) Make available for public inspection and copying all indexes
maintained for agency use.
(5) Each state agency shall, by rule, establish and implement a system of
indexing for the identification and location of the following records:
(a) All records issued before July 1, 1990, for which the agency has
maintained an index;
(b) Final orders entered after June 30, 1990, that are issued in
adjudicative proceedings as defined in RCW 34.05.010 and that contain an
analysis or decision of substantial importance to the agency in carrying
out its duties;
(c) Declaratory orders entered after June 30, 1990, that are issued
pursuant to RCW 34.05.240 and that contain an analysis or decision of
substantial importance to the agency in carrying out its duties;
(d) Interpretive statements as defined in RCW 34.05.010 that were entered
after June 30, 1990; and
(e) Policy statements as defined in RCW 34.05.010 that were entered after
June 30, 1990.
Rules establishing systems of indexing shall include, but not be limited
to, requirements for the form and content of the index, its location and
availability to the public, and the schedule for revising or updating the
index. State agencies that have maintained indexes for records issued
before July 1, 1990, shall continue to make such indexes available for
public inspection and copying. Information in such indexes may be
incorporated into indexes prepared pursuant to this subsection. State
agencies may satisfy the requirements of this subsection by making
available to the public indexes prepared by other parties but actually used
by the agency in its operations. State agencies shall make indexes
available for public inspection and copying. State agencies may charge a
fee to cover the actual costs of providing individual mailed copies of
indexes.
(6) A public record may be relied on, used, or cited as precedent by an
agency against a party other than an agency and it may be invoked by the
agency for any other purpose only if:
(a) It has been indexed in an index available to the public; or
(b) Parties affected have timely notice (actual or constructive) of the
terms thereof.
(7) Each agency shall establish, maintain, and make available for public
inspection and copying a statement of the actual per page cost or other
costs, if any, that it charges for providing photocopies of public records
and a statement of the factors and manner used to determine the actual per
page cost or other costs, if any.
(a) In determining the actual per page cost for providing photocopies of
public records, an agency may include all costs directly incident to
copying such public records including the actual cost of the paper and the
per page cost for use of agency copying equipment. In determining other
actual costs for providing photocopies of public records, an agency may
include all costs directly incident to shipping such public records,
including the cost of postage or delivery charges and the cost of any
container or envelope used.
(b) In determining the actual per page cost or other costs for providing
copies of public records, an agency may not include staff salaries,
benefits, or other general administrative or overhead charges, unless those
costs are directly related to the actual cost of copying the public
records. Staff time to copy and mail the requested public records may be
included in an agency's costs.
(8) An agency need not calculate the actual per page cost or other costs
it charges for providing photocopies of public records if to do so would be
unduly burdensome, but in that event: The agency may not charge in excess
of fifteen cents per page for photocopies of public records or for the use
of agency equipment to photocopy public records and the actual postage or
delivery charge and the cost of any container or envelope used to mail the
public records to the requestor.
(9) This chapter shall not be construed as giving authority to any
agency, the office of the secretary of the senate, or the office of the
chief clerk of the house of representatives to give, sell or provide access
to lists of individuals requested for commercial purposes, and agencies,
the office of the secretary of the senate, and the office of the chief
clerk of the house of representatives shall not do so unless specifically
authorized or directed by law: PROVIDED, HOWEVER, That lists of applicants
for professional licenses and of professional licensees shall be made
available to those professional associations or educational organizations
recognized by their professional licensing or examination board, upon
payment of a reasonable charge therefor: PROVIDED FURTHER, That such
recognition may be refused only for a good cause pursuant to a hearing
under the provisions of chapter 34.05 RCW, the Administrative Procedure
Act.
RCW 42.56.080 Public records shall be available for inspection and copying,
and....
Public records shall be available for inspection and copying, and
agencies shall, upon request for identifiable public records, make them
promptly available to any person including, if applicable, on a partial or
installment basis as records that are part of a larger set of requested
records are assembled or made ready for inspection or disclosure. Agencies
shall not deny a request for identifiable public records solely on the
basis that the request is overbroad. Agencies shall not distinguish among
persons requesting records, and such persons shall not be required to
provide information as to the purpose for the request except to establish
whether inspection and copying would violate RCW 42.56.070(9) or other
statute which exempts or prohibits disclosure of specific information or
records to certain persons. Agency facilities shall be made available to
any person for the copying of public records except when and to the extent
that this would unreasonably disrupt the operations of the agency. Agencies
shall honor requests received by mail for identifiable public records
unless exempted by provisions of this chapter.
RCW 42.56.010 The definitions in this section apply throughout this chapter
unless the....
**Update notice: This section has been amended by
Chapter 204, Laws of 2010
The definitions in this section apply throughout this chapter unless the
context clearly requires otherwise.
(1) "Agency" includes all state agencies and all local agencies. "State
agency" includes every state office, department, division, bureau, board,
commission, or other state agency. "Local agency" includes every county,
city, town, municipal corporation, quasi-municipal corporation, or special
purpose district, or any office, department, division, bureau, board,
commission, or agency thereof, or other local public agency.
(2) "Public record" includes any writing containing information relating
to the conduct of government or the performance of any governmental or
proprietary function prepared, owned, used, or retained by any state or
local agency regardless of physical form or characteristics. For the office
of the secretary of the senate and the office of the chief clerk of the
house of representatives, public records means legislative records as
defined in RCW 40.14.100 and also means the following: All budget and
financial records; personnel leave, travel, and payroll records; records of
legislative sessions; reports submitted to the legislature; and any other
record designated a public record by any official action of the senate or
the house of representatives.
(3) "Writing" means handwriting, typewriting, printing, photostating,
photographing, and every other means of recording any form of communication
or representation including, but not limited to, letters, words, pictures,
sounds, or symbols, or combination thereof, and all papers, maps, magnetic
or paper tapes, photographic films and prints, motion picture, film and
video recordings, magnetic or punched cards, discs, drums, diskettes, sound
recordings, and other documents including existing data compilations from
which information may be obtained or translated.
