Jane Doe 1 v. WA State Community College District 17

• Court: Court of Appeals of Washington
• Decided: June 18, 2019
• Docket: 36030-0
• Status: Unpublished

Opinion

FILED JUNE 18, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

JANE DOE #1, a single woman, JANE ) DOES #2-9, ) No. 36030-0-III ) Respondents, ) ) v. ) ) UNPUBLISHED OPINION WASHINGTON STATE COMMUNITY ) COLLEGE DISTRICT 17, ) COMMUNITY COLLEGES OF ) SPOKANE; an agency of the STATE OF ) WASHINGTON, ) ) Respondents, ) ) COWLES COMPANY, a Washington ) Corporation, ) ) Appellant, ) ) SPOKANE TELEVISION, INC., a ) Washington Corporation; and INLAND ) PUBLICATIONS, INC., a Washington ) Corporation, ) ) Defendants. )

FEARING, J. — Based on the Public Records Act’s broad mandate of liberal

disclosure of government agency records, we reverse the superior court’s decision No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

ordering the redaction of names and other identifying information of victims and

witnesses found in investigative records held by the Spokane Falls Community College

following the resignation of the college’s acting president surrounding allegations of

sexual misconduct. We hold that RCW 42.56.230(3), a subsection of the Public Records

Act, does not shield the identifiers from release since no evidence shows that the type of

records were such that the community college would hold the records in files maintained

for the benefit of employees.

FACTS

Appellant Cowles Publishing Company publishes the Spokesman-Review.

Respondent Washington State Community College District 17, a community college

district organized under RCW 28B.50.040, operates two colleges: Spokane Community

College and Spokane Falls Community College. WAC 132Q-276-040. Respondents

Jane Does #1 through 10 are the targets of the subject Public Records Act request sent by

the Spokesman-Review to Spokane Falls Community College. The Spokesman-Review

submitted its request as a result of alleged sexual misconduct of Spokane Falls

Community College acting president Darren Pitcher, who served in this position in 2017

and 2018.

Jane Doe #1 filed an anonymous complaint about Darren Pitcher with Spokane

Falls Community College’s human resources office in 2016, so we assume Pitcher served

in another position with the community college at an earlier date. When the office

2 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

withheld action in response, Jane Doe #1 broadened her audience and filed an anonymous

complaint with community college officials, her faculty union, and the State Board of

Community and Technical Colleges. The American Association of Higher Education

president then explained to Doe #1 that the district maintained a policy not to investigate

anonymous complaints and that she would need to file a formal complaint if she wanted

the allegations investigated. We do not know why the American Association of Higher

Education gave advice about the community college’s policies.

On January 16, 2018, Jane Doe #1 filed a second complaint of sexual harassment

and retaliation against Darren Pitcher with Spokane Falls Community College’s human

resources office. Doe #1 identified herself in this second complaint. The complaint

detailed Pitcher’s purported inappropriate behavior and the effect of the behavior on Doe

#1. The human resources office interviewed Jane Doe #1. Doe #1 recounted Pitcher

exposing his genitals to her, grooming her for a quid pro quo sexual encounter, and

engaging in sexual intercourse with her. Doe #1 further informed the human resources

office that Pitcher engaged in or attempted to engage in sexual relationships with other

subordinates, who either gained promotion or were fired or demoted when rebuffing

sexual advances.

Spokane Falls Community College investigated Jane Doe #1’s allegations, and the

investigation included interviews of Jane Does #2-9. Jane Doe #9 reported that Darren

Pitcher sent instant messenger messages to her of a sexual nature. The messages

3 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

described and commented on Doe #9’s genital and breasts. Jane Does #2-8 and 10 did

not assert that Pitcher subjected them to harassment or misconduct, but the eight women

disclosed knowledge of misbehavior toward others.

On February 26, 2018, Darren Pitcher resigned as acting president. The

Spokesman-Review then made the following public record request to Spokane Falls

Community College:

Please provide all records and correspondence related to claims of misconduct, including claims of sexual harassment, involving Darren Pitcher, from before and during his time as acting president of Spokane Falls Community College. Please also provide all records and correspondence related to Community Colleges of Spokane’s investigation into such allegations. Correspondence should include emails to and from Chancellor Christine Johnson regarding this matter. Please also provide copies of all text messages that Pitcher exchanged with Kari Collen. These text messages are subject to public disclosure if Pitcher used a CCS-owned cell phone or received a stipend for work-related cell phone use. Lastly, please provide a copy of Pitcher’s resignation letter.

Clerk’s Papers at 73.

The Spokesman-Review’s request covered documents that contained the names

and other identifiers of Jane Does #1-9. The Spokane Falls Community College human

resources office contacted the Does and warned that the records would be disclosed on

March 20, 2018. Jane Does #1-9 respectively replied that, had each known her name

would be disclosed, she would not have spoken to investigators.

4 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

PROCEDURE

On March 16, 2018, before Spokane Falls Community College released any

documents, Jane Does #1-9 filed a complaint, motion for temporary restraining order, and

motion for permanent injunction. The Does did not challenge the underlying disclosure

of the documents, but rather sought to enjoin the release of their names and identifiers

contained within the documents. In other words, the Jane Does asked that the court direct

the community college to excise their names and other identifying data from the records.

On March 20, 2018, the trial court granted a temporary restraining order

preventing Spokane Falls Community College from disclosing the names and identifiers

of the Does. The court ordered that the documents be delivered to it for an in camera

review. On March 21, 2018, the Does filed an amended complaint for injunction that

added Jane Doe #10 as a plaintiff.

Spokane Falls Community College released three batches of documents: (1)

working documents, (2) investigation reports and exhibits, and (3) e-mail. The “working

documents” include over six hundred pages of interview notes, complaints, investigation

guidelines, interview timelines, and instant messenger messages.

The investigation file and exhibits contain more than three hundred pages of

documents and include an investigation report, e-mails, written statements, instant

messenger transcripts, administrative procedures, college policies, and other information.

None of the records in this category of documents suggest they arose from any personnel

5 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

file. The produced records included four hundred pages of e-mail correspondence

between and among employees of the community college. The community college

maintains the e-mail in e-mail programs and e-mail servers, not in any employment file.

On March 30, 2018, the trial court granted a permanent injunction that enjoins

Spokane Falls Community College from disclosing the names and identifiers of Jane

Does #1-10 in any response to the Spokesman-Review’s requests or in a response to

future requests. The court categorized the records as exempt personal information under

RCW 42.56.230(3) and declared that no legitimate public interest in the names and

identities of the Does existed.

LAW AND ANALYSIS

Washington’s Public Records Act requires state agencies to produce all public

records on request unless a record falls within an exemption. Progressive Animal

Welfare Society v. University of Washington, 125 Wn.2d 243, 250, 884 P.2d 592 (1994).

The act mandates broad disclosure of public records in order to hold public officials and

institutions accountable to the people. Resident Action Council v. Seattle Housing

Authority, 177 Wn.2d 417, 431, 327 P.3d 600 (2013); Progressive Animal Welfare

Society v. University of Washington, 125 Wn.2d at 251 (1994). The people do not give

public servants the right to decide what is good and what is not good for the people to

know. RCW 42.56.030. Free and open examination of public records serves the public

interest, even though such examination causes inconvenience or embarrassment to public

6 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

officials or others. RCW 42.56.550(3). The public has a right to know who their public

employees are and when those employees are not performing their duties. Predisik v.

Spokane School District No. 81, 182 Wn.2d 896, 908, 346 P.3d 737 (2015).

Because of the broad mandate behind the Public Records Act, the act’s disclosure

provisions must be construed liberally and exemptions construed narrowly. West v. Port

of Olympia, 183 Wn. App. 306, 311, 333 P.3d 488 (2014). Disclosure is limited only by

the precise, specific, and limited exemptions that the act provides. Lyft, Inc. v. City of

Seattle, 190 Wn.2d 769, 778, 418 P.3d 102 (2018). The party seeking to avoid disclosure

bears the burden of proving an exemption applies. Ameriquest Mortgage Co. v. Office of

Attorney General, 177 Wn.2d 467, 486-87, 300 P.3d 799 (2013). This allocation of the

burden of proof looms important in this appeal.

In addition to seeking redaction of their names from the community college

records, the Jane Does seek the obscuration of their respective titles, positions held, and,

in some instances, the departments in which one or more works. They refer to the

information collectively as “identifiers.” Jane Does Nos. 1-10 rely on RCW 42.56.230(3)

for redaction. The statute declares, in relevant part:

The following personal information is exempt from public inspection and copying under this chapter: .... (3) Personal information in files maintained for employees . . . of any public agency to the extent that disclosure would violate their right to privacy.

7 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

We refer to the exemption as the “personal information exception.”

We parse RCW 42.56.230(3) to extract three discrete elements: (1) the records

contain personal information, (2) the information lies in a file maintained for employees,

and (3) disclosure of the personal information would violate one’s right to privacy. The

Spokesman-Review contends that the redacted information does not fulfill any of the three

elements. We conclude that the information sought to be protected does not constitute

information found in a file maintained for employees. Therefore, we do not address

whether the information constitutes “personal information” or whether disclosure would

violate the Jane Does’ right to privacy.

The Public Records Act does not define “personal information.” In Cowles

Publishing Co. v. State Patrol, 44 Wn. App. 882, 890-91, 724 P.2d 379 (1986), rev’d on

other grounds, 109 Wn.2d 712, 748 P.2d 597 (1988) (quoting Turner v. Reed, 22 Ore.

App. 177, 538 P.2d 373 (1975)), this court borrowed an Oregon court’s definition for

“personal information” as “‘normally not [to] be shared with strangers.’” Our state high

court later more broadly defined the term as “‘information relating to or affecting a

particular individual, information associated with private concerns, or information that is

not public or general.’” Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d

398, 412, 259 P.3d 190 (2011) (quoting Bellevue John Does 1-11 v. Bellevue School

District #405, 164 Wn.2d 199, 211, 189 P.3d 139 (2008)). The Bellevue John Does

definition overlaps in part our court’s definition in Cowles Publishing, but significantly

8 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

broadens the definition by including identifying information regardless of whether a

reasonable person would seek to keep the data private. We avoid a determination of

whether the Spokesman Review’s request seeks personal information.

Regardless of whether the opponent of disclosure seeks to shield personal

information, the information must be contained within files that are maintained for

employees. RCW 42.56.230(3). In Cowles Publishing Co. v. State Patrol, 44 Wn. App.

882 (1986), the Spokesman-Review sought release of Spokane Police Department internal

affairs investigation reports. The police department expressed willingness to release the

records but only after redacting the names of officers. The department asserted that any

file relating to a particular officer is “maintained” for that officer within the meaning of

RCW 42.56.230(3). We deemed the contention overbroad and ordered release of the

officers’ names. “That provision was intended to shield only that highly personal

information often contained in employment and other personnel files.” Cowles

Publishing Co. v. State Patrol, 44 Wn. App. at 891 (emphasis added). We listed

examples of such information as an employee’s union dues, charitable contributions,

deferred compensation, medical records, disabilities, employment performance

evaluations, reasons for leaving employment, and sensitive records relating to health or

family information necessary for calculating health plans, job benefits, and taxes.

The Supreme Court reversed this court in Cowles Publishing Co. v. State Patrol,

109 Wn.2d 712 (1988), but on a different ground. The high court agreed that the

9 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

personal information exemption did not shield disclosure of the names, but that former

RCW 42.17.310(1)(b) recodified now as RCW 42.56.210, which covers investigation

records of law enforcement agencies, safeguarded release of the names. We thus

consider our discussion of information found in files maintained for employees to remain

good law.

Tacoma Public Library v. Woessner, 90 Wn. App. 205, 951 P.2d 357, 972 P.2d

932 (1998) (as modified on remand) also addressed the statutory phrase “files maintained

for employees.” Carolyn Woessner sought disclosure, from the library, of information on

employees’ rates of pay, amounts of vacation and leaves hours, benefits, and employer

contributions to employee pensions. Woessner argued that the library did not maintain

the files for employees because the city of Tacoma prepared the reports and the library

did not include the reports in an employee’s personnel file. This court deemed

Woessner’s reading of the exemption too narrow. This court reasoned that the statute

does not specify that the exempted information actually come from an employee’s

individual personnel file. The court directed the focus to be on whether the requested file

contains personal information normally maintained for the benefit of employees rather

than the location where the agency stores the information.

The Jane Does principally rely on Bainbridge Island Police Guild v. City of

Puyallup, 172 Wn.2d 398 (2011). A police officer and his union brought action seeking

to enjoin disclosure of a criminal investigation report and internal investigation report

10 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

from a police department in regards to allegations of sexual assault against a police

officer. The Supreme Court ruled that the department must produce the report, but could

excise the officer’s name. The court held that the name of the officer constituted personal

information since the allegations of misconduct were never substantiated. The high court

never addressed whether the records were the type of records found in a file maintained

for the benefit of an employee.

We question the validity of Bainbridge Island Police Guild v. City of Puyallup

after the Supreme Court’s recent decision in Predisik v. Spokane School District No. 81,

182 Wn.2d 896 (2015). Nevertheless, we find Bainbridge Island to be inapplicable

because the allegations of sexual misconduct were never substantiated. According to the

Jane Does, Spokane Falls Community College substantiated the complaints against

Darren Pitcher. We also emphasize that the Bainbridge Island court never addressed

RCW 42.56.230(3)’s discrete element of the information arising from a file maintained

for employees.

The Jane Does carry the burden of establishing an exemption shields the

identifying information sought to be redacted. Despite arguing to the contrary, the Jane

Does present no evidence that Spokane Falls Community College kept the subject records

in any personnel file. The Jane Does present no facts that the records were similar in

nature to records maintained for the benefit of an employee.

During oral argument, counsel for the Jane Does characterized his clients as

11 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College

courageous women who spoke against abuse from a powerful man. We agree. We

applaud the Jane Does as important whistleblowers. Their courage expands in light of

the state's policy of demanding disclosure of the women's names in response to a Public

Records Act request.

CONCLUSION

We reverse the superior court's order permitting redaction of personal identifiers.

We remand for the superior court to order release, without excision, of the requested

records.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

Fearing, J. WE CONCUR:

Lawrence-Berrey, C.J.