INITIATIVE NO. 276 ‑- COUNTIES ‑- CITIES AND TOWNS ‑- POLICE RECORDS ‑- ACCESS TO POLICE RECORDS UNDER THE INITIATIVE
A discussion of the extent to which the provisions of RCW 42.17.310(1)(d) and (e) prohibit public access to police records.
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March 25, 1976
Honorable Earl F. Tilly
State Representative, 12th District
326 House Office Building
Olympia, Washington 98504 Cite as: AGLO 1976 No. 24
By recent letter you requested our opinion on the following question regarding public access to certain records under chapter 42.17 RCW (Initiative No. 276):
". . . To what extent do the provisions of RCW 42.17.310(1)(d) and (e) prohibit public access to police records?"
We respond to this question in the manner set forth below.
While we most certainly understand your desire, as well as that of law enforcement officers throughout the state, to have a definitive answer to the foregoing question it is, unfortunately, not one which an attorney general's opinion can fully answer because of the qualifying language of the statutes involved.
The pertinent language of RCW 42.17.310, which was enacted as a part of Initiative No. 276 at the 1972 state general election, reads as follows:
"(1) The following shall be exempt from public inspection and copying:
". . .
"(d) Specific intelligence information and specific investigative files 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 [[Orig. Op. Page 2]] right to privacy.
"(e) Information revealing the identity of persons who file complaints with investigative, law enforcement or penology agencies, except as the complainant may authorize.
". . ." (Emphasis supplied.)
Likewise, subsection (2) of this same statute repeats the essence of the above underscored qualifications by providing that:
"(2) The exemptions of this section shall be inapplicable to the extent that information,the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption shall be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons." (Emphasis supplied.)
Thirdly, at least a part of the same concept is also embodied in RCW 42.17.260, codifying § 26 of the initiative, which reads as follows:
"(1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records. To the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing." (Emphasis supplied.)
Thus, each time a request is made for access to given police records in the custody of an agency1/ a determination will have to be made, in accordance with all of the relevant [[Orig. Op. Page 3]] facts, as to whether or not a release of those records will result in ". . . an unreasonable invasion of personal privacy . . ." or " . . . violation of personal privacy or vital governmental interests, . . ." If this question in answered in the affirmative, the record involved may not be made available for public inspection unless the protected portion can be deleted from the record without destroying it. Accord, AGO 1973 No. 4 [[to Robert E. Schillberg, Prosecting Attorney, Snohomish County on January 19, 1973]], copy enclosed, in which we earlier dealt at considerable length with a similar question in the context of another part of RCW 42.17.310, supra, which, likewise, exempts from public inspection and copying:
". . . Personal 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."
On the other hand, if the information is not deemed to fall under one or both of the foregoing criteria, or if it can be deleted without destroying the record, then inspection must be permitted. The problem, however, as explained in AGO 1973 No. 4, is that these are simply not questions which can be treated in the abstract because, with particular reference to the right of privacy issue, the framers of Initiative No. 276
". . . did not define or otherwise state specific standards outlining the right of personal privacy ‑ in apparent recognition of the uniqueness of that right to each individual or entity which might wish to raise it in opposition to the disclosure of a particular record. Instead, they appropriately left it to the court to protect that personal right on a case‑by-case basis as it is individually invoked, under procedures which they spelled out in three separate portions of Chapter IV of the initiative." (AGO 1973 No. 4 at p. 12.)
What, then, is the custodian of police records to do when requested to allow access to a record to which one or more of the exemptions contained in RCW 42.17.310,supra, may apply? In an attempt to answer this question we went on, after making the foregoing observations in our prior opinion, [[Orig. Op. Page 4]] to describe the procedures established by various sections of the law for obtaining judicial review of the status of any given record ‑ in terms of whether or not its release, in whole or in part, would impair a right of privacy or a vital governmental interest. See, particularly, §§ 31, 33 and 34 of Initiative No. 276, now codified as RCW 42.17.310, 42.17.330, and 42.17.340. Under those sections we explained how these issues can be presented to the court for its determination either by means of a refusal by the custodial agency to allow the subject records to be examined ‑ followed by a suit seeking to compel it to do so ‑ or by an injunctive action initiated either by the custodial agency or the person to whom a record pertains to obtain a court order barring access to that record.
Which of these routes is taken by a particular public agency in a given case will, of necessity, be essentially a question of policy. At the same time, however, because of the court procedures which may then have to be followed (depending upon the way the agency elects to go), it is also a question upon which we have consistently advised public agencies at both the state and local level to seek legal advice insofar as it is reasonably possible to do so.
Perhaps, in time, a sufficient body of decisional law will have been developed in the foregoing matter to enable both this office and other public lawyers to establish at least some general guidelines with respect to the full meaning of both the "right to privacy" and the "vital governmental interests" concepts that are embodied in RCW 42.17.310, supra. This, however, has not yet occurred. Therefore, in response to your present request we must for now simply continue to counsel, as we did in AGO 1973 No. 4, that each demand for access to public records (including police records) which appears to raise a significant issue either of personal privacy or of vital governmental interests be placed before the courts, in one of the alternative ways provided for by the public disclosure law, for resolution on the basis of all of the pertinent facts of the particular case.
Again, we most sincerely regret that we cannot provide [[Orig. Op. Page 5]] a more definitive answer to your question but trust, in the light of the foregoing explanation of the legal problems involved under the present terms of the public disclosure law that you will understand.2/
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Defined by RCW 42.17.020(1) to include ". . . all state agencies and local agencies . . ." but not, for example, federal agencies.
2/One approach to a solution to those problems, of course, would be for the legislature to amend the pertinent statute in some appropriate manner. Since Initiative No. 276 has now been in effect for more than two years it is currently subject to amendment in the same manner as any other statute. Accord, Wash. Const., Art. II, § 41 (Amendment 26).