INITIATIVE NO. 276 ‑- COUNTIES ‑- CITIES AND TOWNS ‑- POLICE RECORDS ‑- ACCESS TO POLICE RECORDS UNDER THE INITIATIVE
Under the provisions of RCW 42.17.260 ‑ 42.17.310, a determination that certain records in the custody of a city police department do, or do not, contain specific intelligence information or the identity of persons who file complaints with investigative, law enforcement, or penology agencies will not, by and of itself, establish whether the records involved may legally be disclosed to the news media or other members of the public; instead, in each case a further determination must be made, on the basis of the facts of the particular case, whether disclosure will violate an individual's right of personal privacy or a vital governmental interest.
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September 15, 1976
Honorable Max Benitz
State Senator, 8th District
Route 2, Box 181
Prosser, Washington 99350 Cite as: AGLO 1976 No. 57
By recent letter you asked for our opinion regarding the status of certain records in the custody of a city police department under the state public disclosure law, and particularly so much of RCW 42.17.310 as provides that:
"(1) The following shall be exempt from public inspection and copying:
". . .
"(d) 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.
"(e) Information revealing the identity of persons who file complaints with investigative, law enforcement, or penology agencies, except as the complainant may authorize: Provided, That this subsection shall not apply to persons who file complaints with the public disclosure commission about any elected official or candidate for elective office: Provided,further, That all complaints filed with the public disclosure commission about any elected official or candidate for public office must be made in writing and signed by the complainant under oath."
In the light of these statutory exemptions of certain records from public inspection you have asked:
[[Orig. Op. Page 2]]
"1. Considering the import and the intent of the Public Disclosure Law, does the exemption in RCW 42.17.310(d) relating to specific intelligence and investigative records compiled by law enforcement agencies include: (1) The identity of arrested persons; (2) Alleged offenses committed by arrested persons; (3) The identity of the victim or victims of the alleged offense; (4) The identity of persons involved in accident cases.
"2. As to RCW 42.17.310(e): (1) Does the term complainant include both verbal and written complaints; (2) What information may be released regarding complainants without authorization?"
To the extent we are able to do so, we will respond to these questions in the manner set forth in our analysis below. For the reasons stated therein, however, our response will also address (once again) the broader question of public access to police records, generally, under the public disclosure law, in order to provide you with a somewhat more complete basis for deciding upon the desirability of some form of amendatory legislation.1/
In order to set the stage for what will follow in our attempt to respond in a meaningful way to your opinion request we must begin with an analysis of the thrust of your questions themselves. Presumably, from the general tone of your letter, you have in mind that a negative answer to those questions (i.e., that the exemptions do not apply) will mean that the information described may lawfully be made available to the press or other members of the public upon request and, conversely, that an affirmative answer will mean that the information may not be so disclosed. Unfortunately, however, the matter is not quite [[Orig. Op. Page 3]] so simple. Instead, it is complicated by the fact that within the public disclosure act, not only in RCW 42.17.310(1)(d),2/supra, but elsewhere, there are to be found several qualifying provisions apparently aimed at the protection of individual rights of personal privacy and what are referred to as "vital governmental interests." For better or for worse, the presence of these provisions in the law has, as most recently indicated in AGLO 1976 No. 24 [[to Earl Tilley, State Representative, on March 25, 1976 and Informal Opinion, AIR-76524]], copy enclosed,3/ caused it to be most difficult if not impossible for us to attempt to advise, in an opinion such as this, with regard to the precise legal status of any given categories of police or other "public" records in the abstract. Moreover, as we will explain below, this is true regardless of whether or not a given record otherwise falls within the scope of one or more of the express exemptions from public disclosure that are set forth in RCW 42.17.310(1), supra.
To begin with you will, perhaps, already have noted from a reading of RCW 42.17.310(1)(d),supra, that this statute only declares "[s]pecific intelligence information" to be exempt from public inspection to the extent that ". . . nondisclosure . . . is essential to effective law enforcement or for the protection of any person's right to privacy." In addition, however, subsection (2) of the same statute repeats the essence of the foregoing qualification in terms applicable to all of the exemptions provided for in RCW 42.17.310(1) by stating that:
"(2) The exemptions of this section shall be inapplicable to the extent that information, thedisclosure 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.)
[[Orig. Op. Page 4]]
And then thirdly, cutting across all public records4/ (and not merely those described in RCW 42.17.310) is so much of RCW 42.17.260(1), codifying § 26 of the initiative, as directs that:
"(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.)
It is because of this latter provision that even a determination of the applicability or inapplicability to a given record of one of the specific exemptions listed in RCW 42.17.310 will not fully establish the legality of public disclosure in every instance. Thus, for example, merely determining whether or not given arrest records (such as those referred to in your first question) do, or do not, come within the purview of RCW 42.17.310(1)(d) will not, by itself, establish the overall legal status of those records insofar as public inspection under the public disclosure law is concerned. If the records in question do come within the scope of that portion of the statute they will still only be exempt from such inspection if (again) ". . . nondisclosure . . . is essential to effective law enforcement5/ or for the protection of any person's right to privacy." But even if the records do not fall under that specific exemption the agency having custody will be required by RCW 42.17.260(1), supra, to ". . . delete identifying details when it makes available or publishes . . ." the records involved whenever that is necessary in order to ". . . prevent an unreasonable invasion of personal privacy . . ."
[[Orig. Op. Page 5]]
Likewise, turning to the exemption involved in your second question, even though information revealing the identity of a complainant in a police case is expressly exempt from public inspection under RCW 42.17.310(1)(e), supra, because of subsection (2) of the statute that exemption will only apply if ". . . disclosure . . . would violate personal privacy or vital governmental interests, . . ." Therefore if such information, although contained in a particular record, can be deleted therefrom the remainder of the record will be subject to public inspection. But, by the same token, under RCW 42.17.260(1) the same basic approach (insofar as personal privacy is concerned) will apply to the question of disclosure v. nondisclosure even if the record involved is not one deemed to fall within the scope of RCW 42.17.310(1)(e).
How, then, in view of the foregoing may we best attempt to deal with your present opinion request? Unfortunately, that issue is further complicated because of the probability that even without the above described additional obstacles we would be unable to answer at least portions of your first question either in the unqualified affirmative or negative ‑ inasmuch as the issue of whether or not the identity of an arrested person or crime victim (for example) constitutes "intelligence information" or is part of an "investigative record" may also depend upon the facts of each case.6/ But even if that bridge could be crossed the ultimate question of press or other public access to a particular record would not be resolved by such an attorney general's opinion. Instead, as we also finally had to say in AGLO 1976 No. 24, supra, because of the qualifying language of RCW 42.17.310(2) with respect to otherwise exempt records, and of RCW 42.17.260(1) in the case of all public records, it is further necessary each time a request is made for access to given police department records for an additional determination to be made relative to whether or not a release of those particular records will result in ". . . an unreasonable invasion of personal privacy. . ." (RCW 42.17.260(1)) or a ". . . violation of personal privacy or vital governmental interest, . . ." (RCW 42.17.310(2)). If this question is answered in the affirmative the record involved may not be made [[Orig. Op. Page 6]] available for public inspection (regardless of whether it is otherwise exempt under RCW 42.17.310(1)) unless the protected portion can be deleted from the record without destroying it.7/ On the other hand, if the information in question 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 even though the particular record might otherwise be exempt. But, as we have said before in both AGLO 1976 No. 24 and in AGO 1973 No. 4 [[to Robert E. Schillberg, Prosecuting Attorney Snohomish County on January 19, 1973]],supra, those are likewise not questions which can be treated in the abstract. Rather, each case must again be determined on the basis of its own facts because (as stated in AGO 1973 No. 4 with particular reference to the "right of privacy" issue)8/ the framers of Initiative No. 276 simply 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."
This brings us, we think, to the heart of the matter. Whether the foregoing approach to the problem of balancing public and private interests is a wise one or not is a question upon which opinions may differ. Perhaps in time (as we have also observed earlier) a sufficient body of decisional law will have been developed on a "case‑by-case [[Orig. Op. Page 7]] basis" under the procedural provisions of the present law9/ 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. Unfortunately, however, that has still not occurred and thus such situations as the one which apparently precipitated your present opinion request10/ will continue to arise for, possibly, a further appreciable period of time. And, understandably, this will in turn be likely to result in considerably greater negative than positive vibrations in terms of public acceptance of at least this portion (the public records chapter) of Initiative No. 276.
Bearing this in mind it would seem to us in closing that the possibility of legislative amendment is certainly worth considering. 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.11/ Accordingly, to the extent that the legislature may conclude that thestatusquo under the law as it now reads (as we have above attempted to explain it) is, on balance, an undesirable one it may now do something about the problem through the normal amendatory process. And in that process, while the nature of the problem is such as to have caused it not to be solvable by means of a more traditional type of attorney general's opinion, we would nevertheless hope that this letter, by having pointed out in detail the sources of the problem, will be of assistance [[Orig. Op. Page 8]] to you and other members of the legislature in dealing with this most important subject during your forthcoming sessions.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/While we are, of course, always available to you and other members of the legislature to answer questions pertaining to the provisions of existing state laws or constitutional provisions in order to assist the legislature in determining whether any amendatory or remedial legislation on a given subject is necessary, this, and this alone, represents the only appropriate basis for the issuance of an attorney general's opinion to a member of the legislature.
2/As you have indicated, RCW 42.17.310, supra, was enacted as a part of Initiative No. 276 (commonly known as the state public disclosure act) at the 1972 state general election.
3/Written to State Representative Earl Tilly, March 25, 1976 [[AGLO 1976 No. 24]].
4/Defined by RCW 42.17.020(26) to include
". . . 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."
5/Presumably, a "vital governmental interest" within the meaning of RCW 42.17.310(2), supra, as well.
6/As far as your second question is concerned, on the other hand, it seems clear that a document or other record revealing the identity of complainants will be exempt from inspection under RCW 42.17.310(1)(e), supra, except as qualified by RCW 42.17.310(2), regardless of whether the complaint itself was made orally or in writing.
7/See, also, AGO 1973 No. 4 [[to Robert E. Schillberg, Prosecuting Attorney Snohomish County on January 19, 1973]], a copy of which you will also find 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 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."
8/The same observations, however, are also basically applicable to the determination of what access, in a given case, would be violative of a "vital governmental interest."
9/See, particularly, RCW 42.17.320 ‑ 42.17.340, quoted on pp. 12 and 13 of AGO 1973 No. 4, together with RCW 42.17.310(2), supra.
10/I.e., a reported refusal by the police department of a city in your legislative district to allow press or other public access ". . . to any information relating to the arrest of individuals."
11/Accord, Wash. Const., Article II, § 41 (Amendment 26).