Internal Affairs (1988)

[Ariadna Parrent]

713 Kenneth O. Eikenberry, Attorney General, and Chip Holcomb, Assistant; Donald C. Brockett, Prosecuting Attorney, and David A. Saraceno, Deputy; James C. Sloane, City Attorney, and Rocco N. Treppiedi and Richard C. Robinson, Assistants, for petitioners State, et al.

Cowles Publishing Company is the owner of two newspapers, the Spokane Chronicle and the Spokesman-Review. The newspapers seek access to the names of law enforcement officers against whom complaints have been sustained after internal investigations conducted by their respective law enforcement agencies. We hold that those names were properly withheld pursuant to the RCW 42.17.310(1)(d) investigative records exemption to the public disclosure act.

During the summer of 1983, a reporter investigating an incident in which two Spokane police officers shot and killed a man was told that the same officers might have been involved in a prior incident in which they allegedly used excessive force. The reporter also heard that the prior incident generated a citizen's complaint resulting in the officers being reprimanded. In an effort to substantiate this *714 information, the newspapers requested, pursuant to the public disclosure act, RCW 42.17, that the Spokane Police Department release all internal investigation records pertaining to citizens' complaints against police officers. The newspapers sought the information on the same basis available to a private citizen. This request was later amended to seek only those records or files generated by complaints filed during 1983 which were determined to be true, i.e., "sustained", following an internal affairs investigation. Similar requests were made to the Spokane County Sheriff's Department and the Washington State Patrol relating to instances occurring in Spokane County during 1983.

The three agencies consented to provide edited copies of the documents requested, but intended to delete information relating to the identity of the officers involved, the complaining parties, and other witnesses who had been interviewed. The agencies claimed the deletions were necessary to protect the privacy interests of the persons named in the documents, to insure effective internal affairs investigations, and the confidentiality of reported complaints. Subsequently, the Spokane Police Department and the Spokane Sheriff's Department did release eight edited files with the aforementioned deletions.[1] The Washington State *715 Patrol offered to provide similar information, but was not requested to do so.

The newspapers initiated this action and obtained an order requiring the three agencies to show cause why they should not disclose the unedited versions of the records. The Spokane Police Guild was allowed to intervene and a hearing was held on July 12 and 13, 1984.

Each agency maintains an internal affairs division, which upon receipt of a complaint investigates each incident. The officer involved is required to disclose his or her recollections with the understanding that no evidence thus disclosed may be used in any criminal investigation. The officer does not have the right to interrogate other witnesses, is not entitled to assert the privilege against self-incrimination, and is subject to dismissal upon refusal to respond. Seattle Police Officers' Guild v. Seattle, 80 Wn.2d 307, 494 P.2d 485 (1972). The head of the agency, on the basis of all the evidence, determines whether to sustain the complaint and impose a sanction or dismiss it. Approximately 10 percent of the complaints registered either by citizens or from within an agency are sustained. The officer may appeal from the determination and is accorded a public hearing on appeal. RCW 43.43.070 (Washington State Patrol); RCW 41.14.120 (county sheriffs); RCW 41.12.090 (city police).[2]

Internal affairs investigative files are maintained separately from the officer's personnel file, although a notice of sanction is placed in the personnel file. The Washington State Patrol disseminates information concerning sanctions through its teletype network to each of its divisional offices, which in turn discloses within the organization the name of the disciplined officer and the infraction.

Officers of each agency testified concerning the apprehension *716 and anxiety arising from the filing of complaints. This tension and concern is felt by the officers, their families and the department. This testimony was supported by a police psychologist. The psychologist testified that the usual high level of stress accompanying the duties of an officer was significantly increased by the added stress of an internal affairs investigation. He also described the stress, aggravation, and humiliation visited upon the families of officers who complained against colleagues. The psychologist stated that disclosure of this information could result in a "code of silence" among the officers, resulting in instances of misconduct not being reported. Several high ranking officers in positions of leadership within their internal affairs departments also testified that if the names of complainants, witnesses or the officers complained against could be released to the public, such a situation would inhibit the investigative process. One such officer testified that all of the witnesses who were asked as to their wishes desired to remain anonymous insofar as the public was concerned. These witnesses testified, in general, that if the names of complainants, witnesses or of the officers complained against were to be released to the public, fellow officers would be reluctant to assist internal affairs and the system so needed to combat inefficiency and misconduct would be severely handicapped or ineffective.

The court entered findings of fact, conclusions of law, and an order concluding that the names of complainants, witnesses and the officers complained against in internal investigative reports were exempt from disclosure. The court found that release of the names of the individual officers, coupled with other factual data in the reports, would violate the officers' rights of privacy within the context of the personal information exemption, RCW 42.17.310(1)(b). Further, the court held the requested information constituted "specific investigative records" and concluded the nondisclosure of the officers' names was "essential to effective law enforcement" as exempt under RCW 42.17.310(1)(d).

The order of the trial court was reversed by the Court of Appeals. The three law enforcement agencies were directed to disclose the names of the officers against whom each complaint was sustained. This court granted the Spokane Police Guild's petition for review.

None of the parties contend that the reports requested are not "public records". However, the law enforcement agencies assert that the names of officers were properly deleted because disclosure of the names would constitute "an unreasonable invasion of personal privacy" pursuant to RCW 42.17.260(1), and because they fall within one or both of the following exemptions:

When the Spokane Police Department and the other law enforcement agencies released records of internal investigations of complaints upheld against their officers, they asserted that deletion of the names of those officers was necessary to protect the personal privacy of the officers as required by RCW 42.17.260(1). The plaintiff newspapers contend that interpretations of the public disclosure act by this court in Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978) and its progeny have determined that the release of names under circumstances such as these does not constitute an unreasonable invasion of privacy and thus deletion of the names is not justified under the act.

RCW 42.17.260(1) allows an agency to delete names and other identifying details from records released under the public disclosure act, if such deletions are "required to prevent an unreasonable invasion of personal privacy". The public disclosure act does not contain a definition of what constitutes "personal privacy". However, that issue was addressed in Hearst, a case involving RCW 42.17.310(1)(c), one of the exemptions from the duty of disclosure. There it was stated:

In Hearst, a newspaper sought disclosure of personal and real property tax records of private citizens in an effort to determine whether the King County Assessor had given special favors to persons who contributed to his campaign. Mr. Hoppe, the Assessor, asserted that deletion of the names of the taxpayers involved was necessary to protect *722 "the taxpayer's right to privacy" as required to exempt the information from disclosure under RCW 42.17.310(1)(c). This court found that release of the names would not unreasonably invade the taxpayers' personal privacy, and ordered that the record be disclosed with the names intact.

In the present action the defendant law enforcement agencies contend that the holding of the Hearst case should be limited to its facts, and that this court's adoption of the Restatement (Second) of Torts 652D test for invasion of privacy was not intended as a general definition to be applied to all of the instances in which an unreasonable invasion of personal privacy must be proven to justify nondisclosure of public records under the public disclosure act. We disagree. "It is a familiar canon of construction, that when similar words are used in different parts of a statute, the meaning is presumed to be the same throughout." Booma v. Bigelow-Sanford Carpet Co., 330 Mass. 79, 82, 111 N.E.2d 742, quoted in DeGrief v. Seattle, 50 Wn.2d 1, 11, 297 P.2d 940 (1956). The definition of "invasion of privacy" set forth with respect to one section of the public disclosure act should also apply to an invasion of privacy in respect to other sections of the act.

The Court of Appeals has applied the 652D test for invasion of privacy in several situations not involving the specific exemption considered in Hearst. State Human Rights Comm'n v. Seattle, 25 Wn. App. 364, 607 P.2d 332 (1980) applied the 652D test to a decision by the City of Seattle to delete the names of job applicants from copies of applications provided to an individual who believed he was the victim of unfair hiring practices. The applications included information such as the applicants' education and work experience, previous salaries, reasons for leaving former employment, military services, criminal convictions, and mental or physical disabilities. Applying the 652D test, the court concluded "[i]t cannot be disputed by any reasonable person that the public disclosure of material contained in answers to the above questions would or could be highly offensive to the five applicants", Human Rights *723 Comm'n, at 370, and ruled that the names of the applicants need not be disclosed.

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