The issue presented by this case is whether the public disclosure act, RCW 42.17, requires the Snohomish County Prosecutor's office (prosecutor's office) to give a citizen (1) copies of documents compiled for use in
The request for disclosure was made on behalf of Lawrence Daly, a former law enforcement officer who appears frequently as a defense expert witness in child sex abuse prosecutions in Snohomish County. Employees of the prosecutor's office have developed files on Daly for use in challenging his qualifications, in cross-examining him, and in attempting to impeach him when he appears as a defense witness in child sexual abuse prosecutions.
Paul Stern, a deputy prosecutor, created one of the files. William France, a child protection specialist employed by the prosecutor's office, compiled a second file. These files contain three categories of documents: (1) intraagency memoranda and notes by Stern and France concerning Daly; (2) correspondence with third parties about Daly; and (3) articles, books, testimony, affidavits, and other statements by Daly with notations added by employees of the prosecutor's office. France stated that his file had been developed to assist deputy prosecutors in preparing for two previous prosecutions.
Attorney Clifford Freed, acting on Daly's behalf, made a public disclosure act request for copies of all files concerning Daly and for a copy of Stern's personnel file. The stated purpose of this request was to determine whether Stern or France had defamed Daly or tortiously interfered with Daly's business.
The prosecutor disclosed the contents of Stern's personnel file except for the following: (1) letters written by Stern or on his behalf seeking employment; (2) a copy of Stern's resume; (3) notes taken during Stern's employment interview; (4) a letter concerning that interview; (5) performance evaluations; and (6) requests for verification of employment. No
In a letter to Daly's attorney, the prosecutor claimed that all other requested documents were exempted from disclosure by specific statutory exemptions and informed him that the prosecutor intended to seek a permanent injunction against disclosure of the documents withheld. Simultaneously, the prosecutor sought an injunction.
The trial court denied the injunction as to all documents except Stern's resume, the letters relating to Stern's application for employment, and the notes taken during Stern's interview. We granted direct review of the trial court's ruling. The order was stayed pending review.
The public disclosure act (the act), RCW 42.17, was enacted in 1972 by initiative. The act is a "strongly worded mandate for broad disclosure of public records." Spokane Police Guild, at 33. To "promote complete disclosure", RCW 42.17.010 requires that the act be construed liberally. The basic duty of disclosure is set out in RCW 42.17.260(1), which provides:
(Italics ours.) As a threshold matter, this provision indicates that the act will only apply when an "agency" is requested to disclose "public records".
RCW 42.17.020(1) defines "Local agency" to include "every county ... or any office, department ... or agency thereof...." The Snohomish County prosecutor's office is an agency covered by the act because it is an office of a county.
The documents in the files compiled on Daly are public records because they are writings relating to the performance of prosecutorial functions, and they are used by the prosecutor's office in carrying out those functions. The evaluations of Stern's performance are also public records because they are prepared by the prosecutor's office, and they contain information relating both to the conduct of government and to the performance of governmental, prosecutorial functions. The requests for verification of Stern's employment, however, are not public records. Verification requests seeking information about an employee's position, salary, and length of service relate neither to the conduct of government, nor to the performance of any governmental function. Verification requests are not within the scope of the act and are not subject to disclosure.
The prosecutor claims that the files on Daly are exempt under RCW 42.17.310(1)(j), the discovery rules exemption. RCW 42.17.310(1)(j) exempts:
This exemption incorporates the work product doctrine as a "rule of pretrial discovery". See Overlake Fund v. Bellevue, 60 Wn.App. 787, 795, 810 P.2d 507, review denied, 117 Wn.2d 1022 (1991). Neither the act nor our cases give any guidance concerning the proper scope or interpretation of this exemption. The parties and the trial court agreed that the proper application of this exemption depends on the construction of the term "controversy", which is not defined in the statute.
The statutory context in which a term is used is also relevant in interpreting an undefined term. State v. Rhodes, 58 Wn.App. 913, 920, 795 P.2d 724 (1990). In this case, the common law definition is consistent with the context in which the term is used. "Controversy" is used in RCW 42.17.310(1)(j) as a threshold requirement for application of the work product rule to exempt documents from disclosure under the act. The work product rule requires litigation, either anticipated litigation or actual, past or present, litigation. See Heidebrink, at 400; Pappas, at 210.
By interpreting "controversy" as encompassing either anticipated litigation or actual past or present litigation, we interpret RCW 42.17.310(1)(j) in accord with the clear intent of the statute to protect attorney work product from public disclosure. In this way, moreover, RCW 42.17.310(1)(j) is harmonized with the work product rule in our court rules.
We hold that when documents are both relevant to a controversy, defined as completed, existing, or reasonably anticipated litigation, and protected under the work product rule, the exemption in RCW 42.17.310(1)(j) will apply.
The trial court conducted an in camera review of the documents contained in the prosecutor's files on Daly. As to whether these documents constitute work product, the trial court made the following finding of fact: "Some of the materials in the records reviewed in camera, in particular, the notes and observations by Mr. France and Mr. Stern, constituted work product in the case for which they were prepared." Finding of fact 2.9; Clerk's Papers, at 8. We remand for the trial court to apply our holding concerning the proper interpretation of RCW 42.17.310(1)(j) to this finding.
As to any of the documents in the prosecutor's file on Daly that the trial court determines are not work product, we must consider the applicability of the other exemptions claimed by the prosecutor. The two other RCW 42.17.310(1) exemptions claimed by the prosecutor are (d), the intelligence and investigative records exemption, and (i), the deliberative process exemption.
Records are "specific investigative records" if they were "compiled as a result of a specific investigation focusing
The prosecutor has not demonstrated that Daly was being investigated for criminal activity or "other malfeasance". Neither has the prosecutor claimed that the records concerning Daly contain any intelligence information. Therefore, on the record, the documents concerning Daly are not of the type protected by RCW 42.17.310(1)(d).
This exemption is not applicable to the documents concerning Daly because the prosecutor has not carried the burden of showing that any policies discussed in the intra-agency memoranda concerning Daly have not already been implemented. In his declaration, France stated that his materials on Daly were developed in preparation for two previous trials. To the extent his recommendations were implemented in either of those trials, the memoranda would no longer be exempt. The same proof is lacking as to Stern's notes concerning Daly.
We hold that RCW 42.17.330 does create an independent basis upon which a court may find that disclosure is not required, if the court, upon a request for an injunction under RCW 42.17.330, finds (1) that disclosure is not in the public interest and (2) that disclosure would cause substantial and irreparable damage to a person or a vital government function. However, the protection provided by RCW 42.17.330 differs from that provided by the exemptions in RCW 42.17.310(1). An agency believing that requested documents are covered by one or more of the RCW 42.17.310(1) exemptions may, on its own initiative under RCW 42.17.310(4), withhold disclosure until the requesting party initiates a court action to compel disclosure under RCW 42.17.340. In contrast, an agency believing that requested documents are protected from disclosure under RCW 42.17.330 may, on its own initiative, withhold disclosure only so long as is needed for the agency to seek a court determination of the applicability of RCW 42.17.330. In this case, the prosecutor sought the necessary court determination at the exact moment the requesting party was notified of the refusal to disclose the requested documents. Therefore, if on remand the trial court finds, based on its in camera review, that the requirements of RCW 42.17.330 are met as to the documents concerning Daly, the trial court should enter an appropriate injunction.
In Brouillet, the court held that disclosure of records concerning teacher certificate revocations would not violate the teachers' privacy rights. Brouillet, at 798. That holding was based on the ground that the records were of legitimate concern to the public. Because the agency could not show the essential element of lack of legitimate public concern, the court did not consider whether the disclosure would be highly offensive.
The Court of Appeals has also considered the employee privacy exemption. In a wrongful termination case in which the plaintiff sought "personnel evaluations and records of the performance and discipline of other employees", the court held that the records, with some deletions, should have been disclosed. Ollie v. Highland Sch. Dist. 203, 50 Wn.App. 639, 645, 749 P.2d 757, review denied, 110 Wn.2d 1040 (1988).
Ollie, at 645.
In another case, the records at issue were internal investigation files of several law enforcement agencies concerning complaints filed against police officers. Cowles Pub'g Co. v. State Patrol, 44 Wn.App. 882, 724 P.2d 379 (1986), rev'd on other grounds, 109 Wn.2d 712, 748 P.2d 597 (1988). The court held that disclosure would not violate the officers'
A third Court of Appeals case involved a request by a newspaper for copies of complaints made by police officers concerning the local chief of police. Columbian Pub'g Co. v. Vancouver, 36 Wn.App. 25, 671 P.2d 280 (1983). The Court of Appeals upheld the trial court's finding that the employee privacy exemption "does not apply because the records relate to the job performance of a public official". Columbian Pub'g Co., at 29.
Missoulian v. Board of Regents, 207 Mont. 513, 524, 675 P.2d 962 (1984) (quoting Montana Human Rights Div. v. Billings, 199 Mont. 434, 442, 649 P.2d 1283 (1982)). We agree that employee evaluations contain personal information within the meaning of RCW 42.17.310(1)(b).
The offensiveness of disclosure of this category of personal information has also been considered:
(Footnote omitted.) Detroit Edison Co. v. NLRB, 440 U.S. 301, 318, 59 L.Ed.2d 333, 99 S.Ct. 1123 (1979). This sensitivity goes beyond mere embarrassment, which alone is insufficient grounds for nondisclosure under RCW 42.17.340(3). Employee evaluations qualify as personal information that bears on the competence of the subject employees.
We hold that disclosure of performance evaluations, which do not discuss specific instances of misconduct, is presumed to be highly offensive within the meaning of RCW 42.17.255. This presumption may be overcome in some cases. For example, in Ollie v. Highline Sch. Dist. 203, supra, the deletion of identifying information from the evaluations of numerous employees was effective to protect the employees' privacy.
The presumption we establish satisfies only the offensiveness prong of RCW 42.17.255. For a performance evaluation to be within the employee privacy exemption, the agency must also establish the absence of a legitimate public concern. Thus, we must consider whether Stern's performance evaluations are of legitimate concern to the public. This inquiry must be made without regard to the identity of the requesting party or the purpose of the request. RCW 42.17.270.
Although RCW 42.17.255 does not allow a balancing of the employee's privacy interest against the public interest, RCW 42.17.010(11) contemplates some balancing of the public interest in disclosure against the public interest in the "efficient administration of government". Interpreting "legitimate" to mean "reasonable" is consistent with a balancing approach. Requiring disclosure where the public interest in efficient government could be harmed significantly more than the public would be served by disclosure is not reasonable. Therefore, in such a case, the public concern is not legitimate.
Several other states have taken a similar approach to prevent disclosure where the public would be harmed by disclosure even in cases unlike ours where no specific statutory exemption is applicable. See Stone v. Consolidated Pub'g Co., 404 So.2d 678, 681 (Ala. 1981); Anchorage v. Anchorage Daily News, 794 P.2d 584, 590-91 (Alaska 1990); Village of Butler v. Cohen, 163 Wis.2d 819, 825, 472 N.W.2d 579, review denied, 475 N.W.2d 584 (1991).
Stone, at 681. The Alaska court was quick to point out that this balance does not interfere with any preference for disclosure established by its public records act because the burden is still on the agency to show that the public interest weighs on the side of nondisclosure. Anchorage Daily News, at 591.
Ripskis v. Department of Housing & Urban Dev., 746 F.2d 1, 3 (D.C. Cir.1984). Second, disclosure could cause even greater harm to the public by making supervisors reluctant to give candid evaluations. "Disclosure will be likely to chill candor in the evaluation process". Ripskis, at 3. See also Trenton Times Corp. v. Board of Educ., 138 N.J.Super. 357, 363, 351 A.2d 30 (1976) ("[w]ere all personnel evaluations known to be subject to public disclosure, candor in making them might well be compromised."). The quality of public employee performance would, therefore, suffer because the public employees
These harms outweigh the public interest in disclosure, at least in a case such as this one where our in camera review, conducted at the request of the prosecutor, revealed that Stern's evaluations do not discuss specific instances of misconduct or public job performance. Therefore, the request for disclosure is not reasonable, the public concern is not legitimate, and the trial court is reversed thereon.
The final two matters raised for our consideration are the trial court's award of attorney fees to Daly and his request for attorney fees on appeal. The prosecutor argues that RCW 42.17.340 does not support an award of attorney fees in an injunction action brought under RCW 42.17.330. Because we have reversed the trial court's ruling, Daly is not a party who has prevailed against an agency as required by RCW 42.17.340. Therefore, the trial court's award of attorney fees is reversed, and it is not necessary for us to reach the issue raised by the prosecutor at this time. However, the trial court will have to reach this issue if any of the documents in the prosecutor's files on Daly are found to be nonexempt on remand. If the trial court determines that attorney fees are appropriate, the award should relate only to that which is disclosed and not to any portion of the requested documents found to be exempt on this appeal. Finally, because Daly did not prevail on appeal, he is not entitled to attorney fees under RAP 18.1.
DORE, C.J., and UTTER, DOLLIVER, ANDERSEN, DURHAM, SMITH, GUY, and JOHNSON, JJ., concur.