FILED FEBRUARY 13, 2020 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 married woman, ) JANE DOES #2-10, ) No. 36030-0-III ) Respondents, ) ORDER (1) GRANTING MOTION ) FOR RECONSIDERATION AND v. ) (2) WITHDRAWING OPINION ) FILED JUNE 18, 2019 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. )
THE COURT has considered the motion of respondents Jane Does #1-10 for
reconsideration of our June 18, 2019, opinion; the answer of respondent Washington
State Community College District 17; the answer of appellant Cowles Publishing
Company; and the record and file herein. No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
IT IS ORDERED that the motion for reconsideration is granted.
IT IS FURTHER ORDERED that this court’s June 18, 2019, opinion is withdrawn
and a new opinion will be filed in due course.
PANEL: Judges Fearing, Lawrence-Berrey and Pennell
FOR THE COURT:
___________________________________ ROBERT LAWRENCE-BERREY Chief Judge FILED MARCH 10, 2020 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 married woman, ) JANE DOES #2-10, ) No. 36030-0-III ) Respondents, ) ) v. ) ) WASHINGTON STATE COMMUNITY ) COLLEGE DISTRICT 17, ) COMMUNITY COLLEGES OF ) SPOKANE; an agency of the STATE OF ) WASHINGTON, ) ) UNPUBLISHED OPINION Respondents, ) ) COWLES COMPANY, a Washington ) Corporation, ) ) Appellant, ) ) SPOKANE TELEVISION, INC., a ) Washington Corporation; and INLAND ) PUBLICATIONS, INC., a Washington ) Corporation, ) ) Defendants. )
FEARING, J. — Pursuant to the Public Records Act, chapter 42.56 RCW, we
previously ordered the release of names and other identifying information of victims and
witnesses found in investigative records held by Spokane Falls Community College, No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
following the resignation of the college’s acting president amid allegations of sexual
misconduct. On reconsideration, we now reverse ourselves based on the 2019 enactment
of House Bill 2020, an amendment to RCW 42.56.250. The legislative amendment
exempts the names of harassment complainants, other accusers, and witnesses from
public disclosure. Because the names of the Jane Doe respondents have yet to be
released, we hold that the amendment applies prospectively to the public records request
pending before the court. We remand to the superior court to determine if the
amendment shields information that the Jane Does seek to protect.
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
2 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
in another position with the community college at an earlier date. When the office
withheld action in response, Jane Doe #1 broadened her audience and filed an anonymous
complaint with community college officials, her faculty union, and the Washington State
Board for Community and Technical Colleges. The American Association of Higher
Education president then explained to Doe #1 that the community college 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, depending on their
response to the sexual advances.
3 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
Spokane Falls Community College investigated Jane Doe #1’s allegations, and the
investigation included interviews of Jane Does #2 through 9. Jane Doe #9 reported that
Darren Pitcher sent instant messaging to her of a sexual nature. The messages described
and commented on Doe #9’s genitalia and breasts. Jane Does #2 through 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 of Spokane
Falls Community College. The Spokesman-Review then made the following Public
Records Act request to the 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 through 9. The Spokane Falls Community College
human resources office contacted the Does and warned that the records would be
4 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
disclosed on March 20, 2018. Jane Does #1 through 9 respectively replied that, had
each known her name would be disclosed, she would not have spoken to investigators.
PROCEDURE
On March 16, 2018, before Spokane Falls Community College released any
documents, Jane Does #1 through 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 superior court granted a temporary restraining order
preventing Spokane Falls Community College from disclosing the names and identifiers
of the Jane 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 messaging.
5 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
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
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 programs and servers, not in any employment file.
On March 30, 2018, the superior court granted a permanent injunction that
enjoined Spokane Falls Community College from disclosing the names and identifiers of
Jane Does #1 through 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.
The Spokesman-Review appealed the superior court’s ruling. On June 18, 2019,
this court reversed the superior court and directed that the names and identifying
information of the Jane Does be released. We ruled that the Jane Does failed to carry
their burden in showing that Spokane Falls Community College maintained the subject
records in any personnel file or that the records were similar in nature to records
maintained for the benefit of an employee. Therefore, RCW 42.56.230(3) did not shield
the redacted information from disclosure.
6 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
The Jane Does thereafter asked this court to reconsider its June 2019 decision.
For the first time, the Jane Does mentioned House Bill 2020, a 2019 amendment to
RCW 42.56.250, with an effective date of July 28, 2019. LAWS OF 2019, ch. 349. The
Jane Does contended that this court should retroactively apply the amendment. On
February 13, 2020, we granted reconsideration and withdrew our June 18, 2019, decision.
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
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).
7 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
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).
The Jane Does initially relied 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.
We declined application of this statutory exemption because the Jane Does failed to show
the information they sought redacted consisted of personal information in files
maintained for employees. We affirm this ruling.
In their July 8, 2019, motion for reconsideration, the Jane Does relied on House
Bill 2020. On May 9, 2019, the Governor signed the house bill into law. LAWS OF 2019,
ch 349. The law became effective July 28, 2019. LAWS OF 2019, ch 349. The legislature
amended RCW 42.56.250, in relevant part, to read:
8 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
The following employment and licensing information is exempt from public inspection and copying under this chapter: .... (6) Investigative records compiled by an employing agency in connection with an investigation of a possible unfair practice under chapter 49.60 RCW or of a possible violation of other federal, state, or local laws or an employing agency’s internal policies prohibiting discrimination or harassment in employment. Records are exempt in their entirety while the investigation is active and ongoing. After the agency has notified the complaining employee of the outcome of the investigation, the records may be disclosed only if the names of complainants, other accusers, and witnesses are redacted, unless a complainant, other accuser, or witness has consented to the disclosure of his or her name. The employing agency must inform a complainant, other accuser, or witness that his or her name will be redacted from the investigation records unless he or she consents to disclosure.
(Emphasis added). In enacting House Bill 2020, the Washington Legislature found:
workplace harassment remains a persistent problem and there is an urgent need to address barriers that prevent people from reporting harassment. The United States equal employment opportunity commission select task force on the study of harassment in the workplace released a report in 2016 finding that ninety percent of individuals who experience harassment never take formal action, and noting that seventy-five percent of employees who spoke out against workplace mistreatment faced some sort of retaliation. The legislature finds that it is in the public interest for state employees to feel safe to report incidents of harassment when it occurs and to protect these employees from an increased risk of retaliation. The legislature finds that the release of the identities of employees who report or participate in harassment investigations increases the risk of retaliation, invades the privacy of a vulnerable population, and significantly reduces reporting of harassment. The legislature finds that if state government can make it easier for victims and witnesses of harassment to come forward and report harassment, harassment issues can be dealt with before they worsen or spread.
LAWS OF 2019, ch. 349, § 1 (emphasis added).
9 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
The pre-amendment RCW 42.56.250 did not help the Jane Does since the statutory
subsection then applied only to investigative records of “active and ongoing”
investigations. Former RCW 42.56.250(5) (2017). The Jane Does could not have
properly raised the 2019 amendment at any stage of the superior court proceedings and
also could not have raised it in their original briefing on appeal because of the recent
nature of the amendment.
In their motion for reconsideration, the Jane Does argue that, although the
amending language was not yet in effect, this court should apply the amendment
retroactively to exempt their names from public release. Conversely, Cowles Publishing
asks the court to decline application of the amendment because the Jane Does did not
mention the statute until the motion for reconsideration. Cowles Publishing also
contends it holds a vested right against application of the amendment retroactively.
Finally, Cowles Publishing also argues that, even if this court decides to legally
apply House Bill 2020, the Jane Does lack evidence that the exemption provided by
RCW 42.56.250(6) factually applies.
We deem Service Employees International Union Local 925 v. Department of
Early Learning, 194 Wn.2d 546, 450 P.3d 1181 (2019) controlling, in which decision the
state Supreme Court faced a similar issue. In that case, Evergreen Freedom Foundation
sent a records request to the Department of Early Learning for the names and addresses
of individuals who provided subsidized childcare under Washington’s Working
10 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
Connections Child Care program. After the foundation submitted its request, but before
the department released the records, Washington voters approved Initiative 1501, which
included provisions that would potentially prohibit disclosure of at least some of the
records sought by the foundation. Although the initiative would not become law for
another three weeks, the childcare workers union filed a complaint seeking declaratory
and injunctive relief prohibiting release of the records.
The Washington Supreme Court, in Service Employees International Union Local
925 v. Department of Early Learning, rejected the foundation’s argument that the law
governing a pending public records request is always the law in existence at the time the
request was made. The Supreme Court also rejected this intermediate court’s ruling that
a public records request creates a vested right safeguarded from retroactive infringement.
Instead, the legislative branch has the right to frustrate a pending Public Records Act
request. The court did not provide a general rule, but rather directed courts to proceed on
a case-by-case basis to determine the intent underlying any Public Records Act
amendment.
In deciding whether to apply Initiative 1501, the Supreme Court, in Service
Employees International Union Local 925 v. Department of Early Learning, identified
the subject matter regulated by the statute in question and studied the statute’s plain
language with the goal of effectuating the voters’ intent. The court ascertained three
instances in which the initiative referred explicitly to the release of records, rather than
11 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
the request for records. As a result, the court concluded that Initiative 1501 should apply
prospectively to the release of the records, since the release had not yet occurred, rather
than retroactively to the request for records.
In deciding whether we should apply newly-amended RCW 42.56.250, this court
must effectuate the legislature’s intent. The legislature designed the amendment to help
employees “feel safe to report incidents of harassment when it occurs[.]” LAWS OF 2019,
ch. 349, § 1. The legislature also wanted to reduce the risk of retaliation against reporting
employees. LAWS OF 2019, ch. 349, § 1. The legislature declared:
[t]he release of the identities of employees who report or participate in harassment investigations increases the risk of retaliation, invades the privacy of a vulnerable population, and significantly reduces the reporting of harassment.
LAWS OF 2019, ch. 349, § 1 (emphasis added). We note that the legislature’s findings in
amending the statute refer to the timing of the release of the records, not the timing of
the request for the records. RCW 42.56.250(6) itself references the “disclosure” of the
records rather than the “request” for the records. Disclosure occurs at the time of release.
We fulfill both legislative objectives by applying the 2019 statutory amendment to the
Spokesman-Review’s request to Spokane Falls Community College.
Cowles Publishing argues that this court should not consider RCW 42.56.250(6)
since the Jane Does never asserted the statute before the superior court and before this
reviewing court until their motion for reconsideration. Cowles asserts correctly that the
12 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
party attempting to avoid a Public Records Act disclosure bears the burden of proving an
exemption applies.
An argument that has not been raised in the trial court will generally not be
considered on appeal. RAP 2.5(a); Brundridge v. Fluor Federal Services, Inc., 164
Wn.2d 432, 441, 191 P.3d 879 (2008); Wilson & Son Ranch, LLC v. Hintz, 162 Wn. App.
297, 303, 253 P.3d 470 (2011). This rule affords the trial court with an opportunity to
correct errors, thereby avoiding unnecessary appeals and retrials. Smith v. Shannon,
100 Wn.2d 26, 37, 666 P.2d 351 (1983); Wilson & Son Ranch, LLC v. Hintz, 162 Wn.
App. at 303. Of course, this rationale would not directly apply when the trial court issued
the correct ruling, but on different grounds than accepted by the appellate court.
Nevertheless, courts generally recognize an exception to the general rule of not
considering arguments for the first time on appeal when a new issue arises while the
appeal is pending because of a change in the law. Brundridge v. Fluor Federal Services,
Inc., 164 Wn.2d at 441. This exception fulfills the principle that the “‘law of the case’”
doctrine does not apply in the presence of an intervening change in controlling precedent
between trial and appeal. Brundridge v. Fluor Federal Services, Inc., 164 Wn.2d at 441;
Roberson v. Perez, 156 Wn.2d 33, 42, 123 P.3d 844 (2005). While the change in
RCW 42.56.250 did not occur between the superior court decision and appeal, the new
law became effective shortly after the Jane Does filed their motion for reconsideration
and before any mandate from this court that returned the case to the superior court.
13 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
An appellate court will generally not consider arguments asserted for the first time
in a reply brief. RAP 10.3(c); see, e.g., Dykstra v. Skagit County, 97 Wn. App. 670, 676,
985 P.2d 424 (1999). Raising a new issue in a reply brief gives no opportunity for the
opposing party to respond. Dykstra v. Skagit County, 97 Wn. App. at 676. Nevertheless,
House Bill 2020 had yet to be enacted when the Jane Does filed their briefing. We have
since granted Cowles Publishing an opportunity to respond to the new assertion by the
Jane Does. This court may exercise discretion to review an issue not argued in original
briefing. Harris v. Department of Labor & Industries, 120 Wn.2d 461, 468, 843 P.2d
1056 (1993); In re Marriage of Wendy M., 92 Wn. App. 430, 434, 962 P.2d 130 (1998).
We recognize that the Jane Does assert, in their motion for reconsideration, an
amendment to a statute not relied on previously, rather than an amendment to the statute
they pled in the superior court or initially before this court. Nevertheless, we see no
reason to distinguish this appeal from cases wherein the court applies a change in the
statute initially employed by a party. The same rationales apply to the assertion of a new
statute, when the legislature adopts the statute after the commencement of proceedings.
We further recognize that Spokane Falls Community College has likely already
released or disclosed the records requested by the Spokesman-Review. Thus, one might
argue that the reasoning behind Service Employees International Union Local 925 v.
Department of Early Learning does not extend to this appeal. Cowles Publishing does
not assert this argument, and we would consider such a contention overly technical.
14 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
Although the community college has released the records, the names have not be
disclosed.
Cowles Publishing asks this court to apply the analysis harnessed when assessing
whether the court should apply a statute retroactively. We decline this request. Service
Employees International Union Local 925 v. Department of Early Learning, 194 Wn.2d
546 (2019), teaches that this court does not apply a statute retroactively when the statute
identifies the time of the release of the records rather than the time of the Public Records
Act request and the government entity has yet to release the records.
Cowles Publishing also argues that, even if this court applies the 2019 amendment
to RCW 42.56.250, the Jane Does lack evidence that suggests the statute applies to this
case. The statutory language exempts “investigative records” from public disclosure.
RCW 42.56.250(6). The Spokesman-Review’s Public Records Act request specially
mentioned the investigation into the allegations against Darren Pitcher. Thus, we
question the soundness of Cowles Publishing’s contention. Nevertheless, since the
superior court has yet to address this question, we remand for the superior court to
initially decide the factual application of House Bill 2020 to the public records request.
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.” We note that RCW 42.56.250(6) classifies for
15 No. 36030-0-III Jane Doe #1 v. Wash. State Comm. College Dist. 17
protection only the “name” of each complainant, other accuser, and witness to the
investigation. On remand, the superior court should also address what, if any, additional
information should be redacted from disclosure.
CONCLUSION
We hold House Bill 2020 to apply to the Jane Does’ request for protection from
release of their names. We remand to the superior court for further proceedings.
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. Pennell, J.