Seattle Times staff reporter
In a landmark decision, the state Supreme Court ruled Thursday that investigative reports into alleged misconduct by police officers must be made public even if the accusations are not upheld.
Eight of the nine justices found that the reports can’t be withheld on privacy grounds because the public has a “legitimate interest” in knowing how the allegations were investigated.
But five justices found that the names of officers who have been exonerated may be redacted from the records for privacy reasons.
The ruling means the public, private attorneys and the media will have greater access to information that could shed more light on police investigations and help shape decisions regarding potential lawsuits and news stories.
The decision stemmed from criminal and internal investigations of Bainbridge Island police Officer Steven Cain, who was cleared of allegations that he sexually assaulted and choked a woman during a traffic stop in 2007.
The woman who made the allegation, Bainbridge Island attorney Kim Koenig, sought the records related to the investigations, along with a Bainbridge Island citizen and two journalists, including one for the Kitsap Sun.
Superior Court judges in King and Pierce counties held that the records could be withheld under privacy provisions of the state’s Public Records Act.
But the high court, acting on appeals by Koenig and the others, sent the case back to the lower courts Thursday, with instructions to redact the officer’s name, but produce the remainder of the records.
Michele Earl-Hubbard, a Seattle attorney who filed friend-of-the-court briefs on behalf of The Seattle Times, the Washington Newspaper Publishers Association and other organizations, hailed the ruling, saying it also applies to all public employees and private citizens who claim privacy after being investigated by law enforcement.
Robert Christie, the attorney for the Bainbridge Island Police Guild, which sought to block disclosure of the records, said he was disappointed with the court’s order to release the documents, but pleased that it recognized a privacy right regarding names.
The decision could affect the Seattle Police Department’s longstanding policy of withholding records when officers have been cleared of misconduct allegations in internal investigations. The department cites the need to protect police officers’ privacy and the possibility that officers wouldn’t come forward with complaints or act as witnesses.
In addition, the decision could have a bearing on a pending court case in which the Seattle Police Officers’ Guild is seeking to keep the public from learning the names of officers who have been found, after internal investigations, to have engaged in misconduct.
The city maintains it is obligated to release the names under the Public Records Act, while the guild contends its contract bars disclosure of the names. An arbitrator agreed with the guild, prompting the city to appeal in King County Superior Court.
The Supreme Court’s lead opinion was written by Justice Mary Fairhurst and joined by Justices Gerry Alexander, Tom Chambers and Susan Owens.
“Although lacking a legitimate interest in the name of a police officer who is the subject of an unsubstantiated allegation of sexual misconduct, the public does have a legitimate interest in how a police department responds to and investigates such an allegation against an officer,” Fairhurst wrote.
In a separate opinion, Chief Justice Barbara Madsen concurred with releasing the records, but argued Cain’s name should be disclosed. She was joined by Justices Charles Johnson and Debra Stephens and Justice Pro Tem Richard Sanders, who lost his seat in last year’s election, but is participating in cases he had heard while on the court.
“The lead opinion misconstrues the privacy exemption to apply to the identity of a police officer who is alleged to have engaged in sexual misconduct occurring during the course of performing public duties,” Madsen wrote.
Fairhurst wrote that an unsubstantiated or false accusation of sexual misconduct is not an action taken by an employee in the course of performing public duties.
“We hold that revealing Officer Cain’s identity in connection with Koenig’s unsubstantiated allegation of sexual misconduct is highly offensive to a reasonable person,” she wrote.
In a dissent, Justice James Johnson found that none of the records should be revealed, nor the name of the officer, because doing so would violate his right to privacy.
Johnson’s dissent provided the fifth vote against disclosing the officer’s name.
Earl-Hubbard said she is concerned that by setting a precedent of redacting the names it will make it difficult to expose people who have multiple complaints filed against them.
But she said the ruling is a victory for disclosure because there was an increasing trend of law-enforcement departments withholding documents.
“It’s a practical victory,” Earl-Hubbard said. “It gives us a way to get some records and have some oversight and not leave us completely in the dark.”
It remains to be seen whether police will seek to block the release of investigative records on other grounds, such as citing an exemption that allows the withholding of documents to protect effective law enforcement.
But the court’s overall ruling followed other decisions in recent years in which it has broadly interpreted the Public Records Act and recognized the public’s right to know.
In the Bainbridge Island case, the Bainbridge police guild sought to block the disclosure of records related to a criminal investigation of Cain conducted by Puyallup police and an internal investigation performed by the Mercer Island police, both requested by Bainbridge’s police chief.
As a result of the criminal investigation, the Kitsap County prosecutor declined to bring a charge against Cain, and then-chief Matt Haney found the allegations to be unsubstantiated.
Koenig filed a federal lawsuit against the Bainbridge Island Police Department and Cain last year, alleging violation of her civil and constitutional rights.
The case is pending in U.S. District Court in Tacoma.
Information from The Associated Press is included in this story.
Steve Miletich: 206-464-3302 or [email protected]