The Cowles Publishing Company requested records specifying the reasons for teacher certificate revocations during the last 10 years. It wanted to use the records to prepare investigative articles on teacher sexual misconduct with students. The State Superintendent of Public Instruction (SPI) and the Washington Education Association (WEA) sought a declaratory judgment upholding SPI's refusal to fully comply with Cowles' request.
Prior to filing suit, SPI gave Cowles the names of the 89 teachers whose certificates were revoked in the last 10 years
The documents detailing the reasons for revocation of teacher certificates were at issue in the proceedings below.
The parties submitted affidavits of school officials, students, teachers, attorneys involved in teacher decertification, and various experts. These affidavits addressed the question of whether release of these records would discourage student witnesses from making complaints about teacher sexual misconduct which form the basis for some certificate revocations. The school system
Cowles sought to prove at trial that disclosure of these records would not impede investigation of teachers. Cowles submitted affidavits from students who stated that disclosure would encourage victims of abuse to come forward because they would feel less isolated. The students also said that release of details of sexual contact was less harmful than having false rumors circulating. Cowles also submitted an affidavit from a journalist indicating that all 12 students
One father's affidavit stated that disclosure would enable the public to encourage the school system to diligently investigate complaints. He believed that the school system would have dropped the investigation into sexual abuse of his daughter but for his persistence.
The states of Florida, Nebraska and Georgia investigate teachers while allowing disclosure of records. Finding of fact 10. The record does not permit firm conclusions about the effect this openness has on disciplinary actions due to sexual abuse.
The school system submitted affidavits of school officials and lawyers who had experience in certificate revocation. These affiants opined that disclosure would discourage witnesses from coming forward with complaints of sexual abuse. Several affiants stated that in their experience students were always concerned about confidentiality and that assurances of confidentiality were important in encouraging witnesses to make detailed accusations. One affiant testified that victims over 13 are especially concerned about the possibility of newspaper coverage. The school system's affidavits pointed out that details of the incidents might be used to identify the complaining witnesses.
Eighty-six of the eighty-nine teachers who lost their certificates gave them up voluntarily rather than invoking their right to either a closed or open hearing. Assurances of confidentiality play a key role in negotiating relinquishment of the certificate.
Judge Casey entered findings of fact and conclusions of law and held that the Washington public disclosure act required the school system to release the requested documents. The court, however, ordered the school system to delete information which might facilitate identification of victims of teachers' sexual misconduct. It ordered deletion of victims' names, addresses, phone numbers, parents'
RCW 42.17.340(2). The public disclosure act mandates disclosure of all public records not falling under specific exemptions delineated in the act. In keeping with the act's policy, we construe exemptions from mandatory disclosure narrowly. Hearst, 90 Wn.2d at 128. Before determining whether any exemption applies here, we must determine the scope of review.
We reject SPI's argument that we should review the trial court's findings of fact and conclusions of law as we would a motion for summary judgment. Three decisions of the Court of Appeals support the school system's argument that a decision based on affidavits may be treated like a summary judgment motion on appeal. See In re Bellanich, 43 Wn.App. 345, 350, 717 P.2d 307 (1986); Robeson v. Helland, 32 Wn.App. 487, 489, 648 P.2d 461 (1982); Fisher v. Clem, 25 Wn.App. 303, 307, 607 P.2d 326 (1980).
The burden of proof is mandated statutorily. We cannot defer to the state board of education's rule and must, therefore, decide for ourselves whether the act exempts these records from disclosure. Hearst noted, "leaving interpretation of the act to those at whom it was aimed would be the most direct course to its devitalization." Hearst, at 131. The agency must shoulder the burden of proving that one of the act's narrow exemptions shields the records it wishes to keep confidential.
The school system claims that various exemptions to the public disclosure act and the federal education privacy law protect these records. See RCW 42.17.310(1)(d) (privacy and law enforcement exemptions for investigative records);
The trial court found that the investigative records exemptions found in RCW 42.17.310(1)(d) do not apply to the records at issue in this case. That provision exempts:
RCW 42.17.310(1)(d). The records here are specific investigative records compiled by a state agency with the responsibility to discipline teachers. The issue is whether nondisclosure is essential to effective law enforcement or the protection of the right to privacy. The school system has argued that nondisclosure is essential to revocation of teacher certificates. It has not argued that nondisclosure is essential to criminal law enforcement.
Law enforcement involves "[t]he act of putting ... law into effect; ... the carrying out of a mandate or command." Black's Law Dictionary 474 (5th ed. 1979). Because SPI "may" revoke certificates for immoral conduct, it does not carry out a command. SPI's duties regarding revocation of teaching certificates are basically discretionary licensing decisions. Certificates "may be revoked" for grounds set out by statute. RCW 28A.70.160.
Finally, law enforcement involves imposition of a fine or prison term. The record in this case does not link these investigations with any SPI attempt to seek either civil or criminal penalties against the teachers. Cf. J.P. Stevens & Co. v. Perry, 710 F.2d 136 (4th Cir.1983) (investigation of employment practices); Birch v. United States Postal Serv., 803 F.2d 1206 (D.C. Cir.1986) (investigation into criminal use of postal permits).
The definition of administration, unlike the definition of "law enforcement", precisely describes SPI's duties. Administration includes "[d]irection or oversight of any ... employment." Black's Law Dictionary, at 41.
SPI's attempt to characterize its supervision of its employees as law enforcement is unpersuasive. The federal Freedom of Information Act (FOIA) requires disclosure of inquiries into how well the government is supervising its employees. See Rural Housing Alliance v. United States Dep't of Agriculture, 498 F.2d 73 (D.C. Cir.1974) (remanding to determine whether investigation of housing discrimination was for purpose of enforcing law or simply governmental oversight of its employees); Stern v. Small Business Admin., 516 F.Supp. 145, 150 (D.D.C. 1980) (holding that a disciplinary investigation of civil rights complaints does not have a law enforcement purpose); see also Department of Air Force v. Rose, 425 U.S. 352, 48 L.Ed.2d 11, 96 S.Ct. 1592 (1976) (permitting release of
Cowles Pub'g Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597 (1988) does not establish that investigations into the qualifications of state employees constitute law enforcement. Cowles held that an internal police investigation need not be released. The plurality opinion did not characterize the investigation as law enforcement. Rather, the job the officers did was law enforcement. Therefore, disclosure would interfere with law enforcement because it would undermine confidence in the police and interfere with the salutary effects future investigations might have on law enforcement. Cowles, at 729-31.
Exemptions should be narrowly construed. This principle compels the conclusion that revocation of teaching certificates is not law enforcement and that the law enforcement exemption does not apply in this case.
RCW 42.17.310(1)(d) allows nondisclosure of investigative records to protect individual privacy even if they are not essential to effective law enforcement. Therefore, we must decide whether disclosure of these records violates the privacy rights of teachers or students.
The school system cites dicta in the plurality opinion in Cowles, suggesting that a balancing test governs the right of privacy under the statute. See Cowles, 109 Wn.2d at 726. That dicta suggests we balance the right to privacy in the intimate details of one's life against the need for public accountability. This would be unwise as the Legislature has not authorized this kind of freewheeling policy judgment. The Legislature has specifically adopted the test articulated by this court in Hearst and reaffirmed in Police Guild. See RCW 42.17.255. Balancing is not called for. Instead, the statute requires the government to prove that the information would be offensive and of no legitimate public interest.
The school system does not contest Cowles' argument that the information identifying the reasons for certificate revocation is of legitimate public concern either in its briefs or its affidavits. Sexual abuse of students is a proper matter of public concern because the public must decide what can be done about it. The public requires information about the extent of known sexual misconduct in the schools, its nature, and the way the school system responds in order to address the problem. Because the information sought is of legitimate public interest, we conclude that no privacy right has been violated.
Cowles has not sought the release of the names of students, so the fact that there may be no legitimate public interest in this information is of no consequence for this case. The privacy exemption might well justify the deletion of the names and addresses of students even absent the consent of both parties. Since both parties consented to the redaction in this case, that issue is not before us.
The act also exempts "[p]reliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended" from disclosure. RCW 42.17.310(1)(i). It is argued by the teachers' union that this exemption protects letters from a local school district superintendent which initiate the certificate revocation process.
The Court of Appeals decision in Hafermehl v. UW, 29 Wn.App. 366, 628 P.2d 846 (1981) supports the union's position. The Hafermehl court held that the intra-agency memorandum exemption allowed the University of Washington to refuse disclosure of letters opposing Hafermehl's unsuccessful bid for tenure. That position does not give proper weight to the statutorily required narrow construction of exemptions. Hafermehl's holding regarding the exemption for intra-agency memoranda directly conflicts with Hearst and it is overruled to the extent it conflicts with this opinion. Hiring and promotion decisions are
Moreover, our statement in Hearst that recommendations actually implemented "lose their protection when adopted by the agency" is contrary to Hafermehl. Hearst, 90 Wn.2d at 133. This limitation would compel us to release these records even if we considered certificate revocation to be a policy decision.
The documents at issue perform the function of presenting facts, not opinions. See WAC 180-75-034(2). The exemption does not protect factual data, only actual opinion. Hearst, at 133-34; cf. Hafermehl, 29 Wn. App. at 372 (letters used in tenure evaluation exempt because policy-makers rely on opinions expressed in the letters).
The trial court partially granted the school system's motion to strike the affidavits of out-of-state administrators or to allow oral testimony. The trial court deleted
The motion which the trial court denied in part challenged the admissibility of affidavits on grounds of relevancy. See ER 401. A trial judge may reasonably conclude that the existence of out-of-state procedures allowing access to records of certificate revocation has relevance to the question of whether nondisclosure in Washington is essential to law enforcement or the protection of privacy.
The school system wanted to cross-examine out-of-state administrator Karen Wilde and offered to prove that she would admit that lack of confidentiality had discouraged some complaining students in her state. The trial court deleted the opinion testimony that lay at the heart of the affidavits challenged. The school system failed to take Wilde's deposition or introduce any affidavits or depositions of its own about other states. It did not show any compelling need for oral examination.
Finally, the statute contemplates judicial review upon motion and affidavit. See RCW 42.17.330. Were we to interfere with trial courts' litigation management decisions, we would make public disclosure act cases so expensive that citizens could not use the act for its intended purpose.
The trial court's decision ordering disclosure of the records sought, with the deletions Judge Casey has found necessary to protect the students' identities, is affirmed.
CALLOW, C.J., and BRACHTENBACH, DOLLIVER, DORE, ANDERSEN, DURHAM, SMITH, and GUY, JJ., concur.