Predisik v. Spokane Sch. Dist. No. 81

Opinion

Fl LE

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ANTHONY J. PREDISIK and ) CHRISTOPHER KATKE, ) No. 90129-5 ) Petitioners, ) ) EnBanc v. ) ) SPOKANE SCHOOL DISTRICT NO. ) 81, ) ) Filed APR 0 2 2015 Respondent. ) __________________________ ) Yu, J.-This case involves two public school employees who are on paid

administrative leave while their employer investigates allegations of misconduct.

We must decide if public records that reveal these investigations are occurring-

but do not describe the allegations being investigated-implicate the employees'

privacy rights under the Public Records Act (PRA), chapter 42.56 RCW. We hold

they do not. Because no exemption applies to withhold the records from public

inspection, we reverse and remand with instructions to order the records at issue

disclosed in their entirety without redaction. Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

FACTS AND PROCEDURAL HISTORY

Anthony J. Predisik and Christopher Katke are longtime employees of the

Spokane School District No. 81 (District). In late 2011 and early 2012, the District

began to investigate Predisik and Katke after individuals made separate, unrelated

allegations against the two employees. The substance behind those allegations is

not in the record, but the District's investigations are apparently ongoing and

entering their fourth year. The District placed Predisik and Katke on

administrative leave and has paid salaries to both employees while it investigates.

In the spring of 2012, two media outlets submitted public records requests to

the District. One request sought the "administrative leave letter given to Anthony

Predisik, a Shadle Park High School counselor." Clerk's Papers at 50. The other

request asked for "information on all district employees currently on paid/non-paid

administrative leave." Id. at 331. The requests returned three public records

relevant to this dispute.

The first record is Predisik's "administrative leave letter," a short letter

informing Predisik that he has been placed on administrative leave "pending

completion of the District's investigation into allegations of inappropriate

interactions with a former student." Ex. P-1. It also tells Predisik he is banned

from district property and from talking with students about the matter during the

2 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

investigation. The letter does not describe the allegations in any further detail and

does not name Predisik's accuser.

The second and third records are spreadsheets that document the amount of

leave pay Predisik and Katke had accumulated through April2012. Exs. P-2, P-3.

The spreadsheets, one for each employee, contain columns for the employee's

name, the date of pay, the hours paid, the rate of pay, and a position code. Id. The

final column indicates the reason for leave, which is described generically for both

Predisik and Katke as "[a]llegations currently under investigation." Id. Similar to

the leave letter, the spreadsheets provide no further detail about the allegations or

the accusers.

Predisik and Katke separately sued the District to enjoin disclosure of the

leave letter and spreadsheets, alleging each record is exempt under the "[p]ersonal

information" and "investigative" record exemptions ofRCW 42.56.230(3) and

42.56.240(1 ). The District opposed the injunction and argued the leave letter and

spreadsheets should be disclosed. 1 The trial court consolidated the two cases, and

the parties filed cross motions for summary judgment. Citing our opinion in

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 189 P.3d

139 (2008), the trial court found that Predisik's and Katke's identities, but not the

1 The two media entities that requested the records elected not to join this action, but the District adequately represents the public's interest in full disclosure.

3 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

records themselves, were exempt from disclosure under RCW 42.56.230(3). The

judge ordered all three records disclosed with Predisik's and Katke's names

redacted. The Court of Appeals affirmed. Predisik v. Spokane Sch. Dist. No. 81,

179 Wn. App. 513,319 P.3d 801 (2014).

We granted review to clarify when the PRA will recognize a right to privacy

in the identity of a public employee who is the subject of an open investigation by

his or her public employer. Predisik v. Spokane Sch. Dist. No. 81, 180 Wn.2d

1021, 328 P.3d 903 (2014).

ANALYSIS

The PRA requires that agencies "shall make available for public inspection

and copying all public records," subject only to a handful of statutory exemptions.

RCW 42.56.070(1); see also Progressive Animal Welfare Soc 'y v. Univ. of Wash.,

125 Wn.2d 243,260, 884 P.2d 592 (1994) (PAWS II). The PRA ensures the

sovereignty of the people and the accountability of the governmental agencies that

serve them by providing full access to information concerning the conduct of

government. PAWS II, 125 Wn.2d at 251. To effectuate that policy, we start with

the presumption that all public records are subject to disclosure. Agencies can

withhold a record only if it falls within one of the PRA's specific, limited

exemptions. RCW 42.56.070(1). These exemptions are narrow, and we apply

them in favor of partial disclosure where possible since "the PRA's purpose of

4 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

open government remains paramount." Resident Action Council v. Seattle Hous.

Auth., 177 Wn.2d 417,432,327 P.3d 600 (2013); see also RCW 42.56.070(1)

(requiring that agencies redact records only "[t]o the extent required to prevent an

unreasonable invasion of personal privacy interests protected by [the PRA]" and

produce the remainder of the record). Similarly, the PRA reminds us "that free and

open examination of public records is in the public interest, even though such

examination may cause inconvenience or embarrassment to public officials or

others." RCW 42.56.550(3).

Predisik and Katke argue that two of the PRA' s exemptions independently

justify withholding the leave letter and spreadsheets from disclosure. First, the

employees assert the records contain personal information, the disclosure of which

would violate their rights to privacy. RCW 42.56.230(3). Second, they argue the

records constitute investigative records that are essential to law enforcement. RCW

42.56.240(1). We apply each exemption in turn.

A. Personal information exemption

Predisik and Katke rely principally on RCW 42.56.230(3), which exempts

from disclosure "[p]ersonal information in f1les maintained for employees ... of

any public agency to the extent that disclosure would violate their right to

privacy." Application of this exemption involves three separate questions: (1)

whether the records contain personal information, (2) whether the employees have

5 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

a privacy interest in that personal information, and (3) whether disclosure of that

personal information would violate their right to privacy. Bellevue John Does, 164

Wn.2d at 210. The first question is not in dispute. The leave letter and

spreadsheets, which identify Predisik and Katke by name, contain "'personal

information' [i.e., the employees' identities] because they relate to particular

people." !d. at 211.

The existence of "personal information" in a public record is necessary to

the exemption, but it is not sufficient alone to withhold the record. Employees

must also demonstrate that they have a right to privacy in personal information

contained in a record and if such a right exists, that disclosure would violate it.

The personal information at issue here is Predisik's and Katke's identities when

they are contained in public records disclosing that the District is investigating

allegations of misconduct. So we next must decide whether the PRA grants public

employees under investigation a right to privacy in their identities.

The statute's text offers little guidance to answer this question. Although the

PRA expressly provides "the test for determining when the right to privacy is

violated[, it] does not explicitly identify when the right to privacy exists."

Bainbridge Island Police Guild v. City ofPuyallup, 172 Wn.2d 398, 412-13, 259

P.3d 190 (2011) (footnote omitted) (citing Bellevue John Does, 164 Wn.2d at 212).

We previously used principles of tort law to fill this definitional void and define

6 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

the contours of the PRA's privacy right. In Hearst Corp. v. Hoppe, 90 Wn.2d 123,

135, 580 P.2d 246 (1978), we concluded that the "right of privacy," as it is used in

the PRA, means "what it meant at common law," and we adopted the definition in

the Restatement (Second) o.f'Torts § 652D (1977) (§ 652D).

Therefore, a person has a right to privacy under the PRA only in '"matter[s]

concerning the private life."' Id. at 135 (quoting§ 652D). To explain how that

standard is applied in practice, we looked to theRestatement's summary of the

right to privacy:

"Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget." Id. at 136 (quoting § 652D cmt. b, at 386). This comment "illustrates what nature

ofj'acts are protected by this right to privacy," id. (emphasis added), and taken in

context makes clear that the PRA will not protect everything that an individual

would prefer to keep private. The PRA's "right to privacy" is narrower.

Individuals have a privacy right under the PRA only in the types of "private" facts

fairly comparable to those shown in the Restatement.

Using the Restatement as a rubric, we conclude that the PRA does not

recognize a right of privacy in the mere fact that a public employer is investigating

7 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

an employee. In so holding, we distinguish the investigation itself from the

employee's conduct giving rise to that investigation. This difference, though

subtle, is very important to the Restatement's privacy interest analysis. A public

employer's investigation is certainly not a private matter: it arises exclusively from

the employee's public employment. The investigation is simply an administrative

process. It is not akin to a '"family quarrel[]'" or a "'humiliating illness[,]"' nor

does it touch on the employee's "'life [at] home."' Id. (quoting§ 652D cmt. b, at

386). To the contrary, the investigation relates to a part of the employee's life-

his or her profession-that is freely exposed to the public. A public employer's

investigation is an act of the government, not a closely held private matter that

gives rise to a privacy right under the PRA.

We again contrast the employer's investigation, in which there is no privacy

interest, with the allegations the employer is investigating. We acknowledge that

such allegations may encompass some "past history that [the employee] would

rather forget" and could come within that example or others in the Restatement that

would implicate a privacy right under the PRA. But the mere fact there is an open

investigation into allegations of misconduct is not, by itself: a reason to withhold a

record from disclosure. Agencies and courts must review each responsive record

and discern ti·om its four corners whether the record discloses factual allegations

that are truly of a private nature, using the Restatement as a guide. Though there is

8 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

an inherent degree of fact-finding in this analysis, a record-specific inquiry is the

only way to adhere to the PRA's mandate that exemptions be construed narrowly.

RCW 42.56.030.

Applying this rule, we conclude that neither the leave letter nor the

spreadsheets implicate a privacy right under the PRA. Those records disclose only

that the District has opened an investigation and placed Predisik and Katke on

leave during its pendency; the records do not disclose the factual allegations

underlying that investigation. From these three records, the public learns only

matters related to Predisik's and Katke's status as public employees and nothing

about their personal lives. For the reasons we explain above, this information does

not trigger a privacy interest under the PRA.

Predisik and Katke argue our decision in Bellevue John Does requires we

find a privacy interest here. We held in that case that teachers have a right to

privacy in their identities in records related to unsubstantiated allegations, since in

those instances "the fact of the allegation ... does not bear on the teacher's

performance or activities as a public servant." 164 Wn.2d at 215. But as we

explained, the existence of a privacy right under the PRA depends on the types of

facts disclosed and is not amenable to a bright-line rule.

We do not find Bellevue John Does dispositive when applied to the records

in this case and the limited, public nature of the facts those records disclose.

9 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

Again, a public employer's investigation is a governmental act and a consequence

of employment with the government. Unlike the records at issue in Bellevue John

Does, the leave letter and spreadsheets do not disclose any salacious facts that one

might consider a private matter. Indeed, the records contain no specific allegations

of misconduct at all. It makes no difference if the allegations here are eventually

substantiated because the records do not describe them.

We do not read Bellevue John Does to create a sweeping rule that exempts

an employee's identity from disclosure any time it is mentioned in a record with

some tangential relation to misconduct allegations. A rule that broad would justify

withholding, or at least redacting, nearly every record created during the course of

the District's investigation. Even Bellevue John Does recognizes the PRA entitles

the public to "documents concerning the nature of the allegations and reports

related to the investigation and its outcome." Id. at 221.

Because we hold that no right of privacy exists in the leave letter or

spreadsheets, we need not decide if disclosure of those records would violate that

right. See RCW 42.56.050 (providing the test for determining when disclosure

violates the right to privacy if such a right exists). We observe, however, that the

public has a legitimate concern in the identities of public employees who are the

subject of investigations. The PRA is meant to engender the people's trust in their

government. The recent unrest in Ferguson, Missouri, is an extreme example of

10 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

how that trust is eroded when the public suspects the government is withholding

information to protect its own. See, e.g., Tanzina Vega, Timothy Williams & Erik

Eckholm, Emotions Flare in Missouri Amid Police Statements, N.Y. TIMES (Aug.

15, 2014), available at www.nytimes.com/2014/08/16/us/darren-wilson-identified-

as-officer-in-fatal-shooting-in-ferguson-missouri.html.

But secrecy can breed suspicion in more subtle ways, too. For example, if

we accepted Predisik's and Katke's position, the public would never learn about an

investigation unless and until the underlying allegations are substantiated at some

point in the future. There would be no opportunity for the public to discover the

District's ongoing three-year investigation, much less question the effectiveness of

what some might consider an awfully long process. Government cannot be held

accountable for actions it shields from the public's eye.

Public employees are paid with public tax dollars and, by definition, are

servants of and accountable to the public. The people have a right to know who

their public employees are and when those employees are not performing their

duties. In sum, we hold there is no privacy right under the PRA in the mere fact

that a public employer is investigating a public employee or in the employee's use

of administrative leave. Both are simply functions of the government. Without

such a privacy right, RCW 42.56.230(3) does not apply to exempt the leave letter

or spreadsheets from disclosure.

11 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

B. Investigative record exemption

Predisik and Katke also argue that the investigative records exemption

requires that the District withhold the three records. RCW 42.56.240(1 ). A record

falling within this exemption must, among other requisites, "be essential to law

enforcement or essential to the protection of privacy." Koenig v. Thurston County,

175 Wn.2d 837, 843,287 P.3d 523 (2012) (citing Cowles Publ'g Co. v. State

Patrol, 109 Wn.2d 712, 728, 748 P.2d 597 (1988)). The three records here are

neither.

The leave letter and spreadsheets are not essential to law enforcement. Our

decision in Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 795, 791 P.2d 526

(1990), is dispositive. There we considered whether the superintendent of public

instruction (SPI), who actually wields disciplinary authority over teaching

credentials, performed law enforcement functions. We concluded the SPI could

not rely on the investigative records exemption to withhold records because "it

does not enforce law," and we rejected the agency's "attempt to characterize its

supervision of its employees as law enforcement" activity under the exemption. !d.

at 795-96. The District has even less investigative and disciplinary authority than

the SPI, and its records similarly are not exempted under RCW 42.56.240(1 ).

Nor are the leave letter and spreadsheets essential to the protection of

privacy. The PRA is consistent in its definition of "privacy," which is the same

12 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

definition we announced in Hearst Corp. and applied above. RCW 42.56.050;

LAWS OF 1987, ch. 403, § 1. As discussed in detail earlier, Predisik and Katke

have no right to privacy in records disclosing only the fact that they are the

subjects of an open investigation.

CONCLUSION

Public employees have no privacy right in the fact that they are being

investigated by their public employer. The investigation is merely a status of their

public employment, not an intimate detail of their personal lives, and without such

a privacy right, RCW 42.56.230(3) and .240(1) are inapplicable. We reverse the

Court of Appeals and remand with instructions to order the records at issue

disclosed in their entirety without redaction.

13 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5

WE CONCUR:

;.-:...,

14 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

No. 90129-5

FAIRHURST, J. (dissenting)-! dissent because Anthony J. Predisik and

Christopher Katke (Employees) have a right to privacy in their identities. The

Employees' right to privacy is violated if the records at issue are disclosed. However,

such records can be redacted to protect the Employees' privacy interest. To reach a

contrary result, the majority deviates from our precedent and creates a new rule.

The primary issue in this case is whether under the Public Records Act (PRA),

chapter 42.56 RCW, the identities of the Employees are exempt from disclosure.

The majority's holding that the Employees' identities are not exempt from disclosure

is contrary to our case law. The question presented is resolved by our settled

jurisprudence.

We have construed the PRA as "a strongly worded mandate for broad

disclosure of public records." Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d

246 (1978). The PRA protects the public's right to be informed of agency decisions.

1 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

RCW 42.56.030. To fully protect the public's interest, the PRA requires that its

provisions be construed liberally and its exemptions be construed narrowly. !d.

Unless a record falls within a specific PRA exemption or other statutory exemption,

the PRA requires state and local agencies to disclose all public records upon request.

RCW 42.56.070(1). If a portion of a record should be redacted or remain

undisclosed, "an agency shall delete identifying details in a manner consistent with

[the PRA] when it makes available or publishes any public record." !d. The agency

must justify each redaction in writing. !d.

The Employees argue that two of the PRA's exemptions justify withholding

the records in this case: (1) the personal information exemption, RCW 42.56.230(3),

and (2) the investigative records exemption, RCW 42.56.240(1). We disagree with

the majority's holding regarding the personal information exemption but agree with

the majority's analysis and decision regarding the investigative records exemption.

The Personal Information Exemption

The PRA exempts from disclosure "[p]ersonal information in files maintained

for employees, appointees, or elected officials of any public agency to the extent that

disclosure would violate their right to privacy." RCW 42.56.230(3). To determine

if records constitute personal information exempt from disclosure, we use a three-

part inquiry: ( 1) whether the allegations constitute personal information, (2) whether

those claiming that the exemption applies have a right to privacy in their identities,

2 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

and (3) whether disclosure of the personal information would violate their right to

privacy. Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199,

209, 189 P.3d 139 (2008).

It is undisputed that the leave letter and the spreadsheets that identify the

Employees by name constitute personal information. See id. at 211 ("The teachers'

identities are 'clearly personal information' because they relate to particular

people."); majority at 6. However, personal information is exempt from disclosure

only to the extent that disclosure would violate the individual's right to privacy.

Bellevue John Does, 164 Wn.2d at 212.

The right to privacy is intended to have the same meaning as it was given by

this court in Hearst. Id. Hearst, 90 Wn.2d at 135-36, defined the "right to privacy"

by looking to the common law tort of invasion of privacy and adopted the definition

of "invasion of privacy" set forth in the Restatement (Second) of Torts § 652D

( 1977). According to the Restatement, '" [o]ne who gives publicity to a matter

concerning the private life of another is subject to liability to the other for invasion

of his privacy, if the matter publicized is of a kind that (a) would be highly offensive

to a reasonable person and (b) is not of legitimate concern to the public."' Hearst,

90 Wn.2d at 135-36 (quoting RESTATEMENT§ 652D).

3 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

A. The Employees Have a Right to Privacy in Their Identities

While the above definition describes when the right to privacy is violated, it

does not define when the right to privacy exists. See Bainbridge Island Police Guild

v. City of Puyallup, 172 Wn.2d 398, 412-13, 259 P.3d 190 (2011). We have stated

that the right to privacy exists '"in matter[s] concerning the private life."' 1 Bellevue

John Does, 164 Wn.2d at 212 (alteration in original) (internal quotation marks

omitted) (quoting Hearst, 90 Wn.2d at 135). We have also noted that there is a right

to privacy in unsubstantiated allegations. Morgan v. City ofFederal Way, 166 Wn.2d

747, 756, 213 P.3d 596 (2009) ("Unsubstantiated allegations are exempt from

disclosure.").

In Bellevue John Does we found that if "a complaint regarding misconduct

during the course of public employment is substantiated or results in some sort of

discipline, an employee does not have a right to privacy in the complaint." 164

Wn.2d at 215. However, "[a]n unsubstantiated or false accusation of sexual

misconduct is not an action taken by an employee in the course of performing public

duties." !d. In Bellevue John Does, public school teachers sought to enjoin their

respective school districts from releasing their names in response to a public records

request. !d. at 205. The request was for all records relating to allegations of sexual

1 The Restatement summarizes the right to privacy in comment b to § 652D, and this comment is cited on page 7 of the majority opinion. 4 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

misconduct by teachers in the prior 10 years. !d. at 206. We held that the teachers

had a right to privacy in their identities and ordered that the records could be

disclosed only if the teachers' names were redacted. !d. at 215, 227. We noted that

the unsubstantiated allegations of sexual misconduct that never resulted in any form

of discipline were matters concerning the teachers' private lives and were not

specific instances of misconduct committed while in the course of employment. !d.

at 215. In our reasoning we noted that "[t]he fact of the allegation, not the underlying

conduct, does not bear on the teacher's performance or activities as a public servant."

!d. Moreover, we stated that "[t]he mere fact of the allegation of sexual misconduct

toward a minor may hold the teacher up to hatred and ridicule in the community,

without any evidence that such misconduct ever occurred." !d.

In Morgan, a post-Bellevue John Does decision, we held that the personal

information exemption did not apply to the records at issue. Morgan, 166 Wn.2d at

276. In Morgan, the judge argued that a report produced by the investigating attorney

was exempt from disclosure because it contained unsubstantiated allegations that

were highly offensive. !d. The report alleged that the judge created a hostile work

environment by, among other things, angry outbursts and inappropriate gender-

based comments. !d. In our reasoning, we first addressed whether the judge's right

to privacy would be violated if the records were disclosed. We found that the

allegations against the judge were not as offensive as allegations of sexual

5 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

misconduct with a minor, like in Bellevue John Does, and would not be highly

offensive if disclosed. Next, we stated that contrary to the judge's assertions, the

allegations were not unsubstantiated. ld. The records at issue in Morgan evaluated

the credibility of each person who made an allegation and found that the allegations

were likely true. ld. We held that the judge did not have a right to privacy in the

responsive records. Id.

Here, the question 1s whether the Employees, who are the subject of

unsubstantiated allegations of misconduct, have a right to privacy in their identities.

The administrative leave letter informed that Predisik was placed on administrative

leave "pending completion of the District's investigation into allegations of

inappropriate interactions with a former student." Ex. P-1. The leave slips indicate

that the Employees are on leave for "[a]llegations currently under investigation."

Exs. P-2, P-3. The documents provided no further information about the allegations

or the accusers. Like Bellevue John Does and unlike Morgan, the allegations in the

records are unsubstantiated and there is no evidence that the accusations resulted in

any form of discipline. Because the allegations were unsubstantiated, they do not

bear on the teachers' performance as public servants and do not inform the public of

specific instances of misconduct during the course of employment. Therefore, the

Employees have a right to privacy in their identities.

6 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

The majority found that because the records did not disclose "salacious facts,"

the records here are not comparable to those examined in Bellevue John Does.

Majority at 10. The majority set forth a new rule that requires "[a]gencies and courts

[to] review each responsive record and discern from its four corners whether the

record discloses factual allegations that are truly of a private nature." !d. at 8.

Applying this rule, the majority found that the records do not disclose private

information about the employees because the records related only to the Employees'

status as public employees. !d. at 9. The majority distinguished the "investigation

itself from the employee's conduct giving rise to that investigation." Id. at 8.

According to the majority, the fact that the investigation is occurring is not a private

matter because it relates to a part of the Employees' lives that are freely exposed to

the public. !d.

In reaching its conclusion, the majority disregards the fact that in Bellevue

John Does we found that unsubstantiated allegations of misconduct are not actions

taken by public employees during the course of performing public duties. 2 164

Wn.2d at 215. Therefore, a public employee's identity when disclosed in connection

with unsubstantiated allegations or evidence of pending investigations is not related

2 To support its reasoning, the majority seems to rely on principles from the dissent in Bellevue John Does. 164 Wn.2d at 234 (Madsen, J., dissenting) (noting that the teachers did not have a right to privacy because the allegations of specific instances of misconduct occurred while the employees were performing their public duties).

7 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

to his or her status as a public employee. This principle was derived from past

precedent such as Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 725, 748

P.2d 597 (1988). In Cowles, we noted that the right to privacy is not violated when

a complaint about a specific instance of misconduct is substantiated, but where an

investigation is pending, disclosure would result in a more intrusive invasion of

privacy. The principle was reiterated in Morgan, where we noted that

unsubstantiated claims of misconduct are exempt from disclosure. 166 Wn.2d at 756.

B. Disclosure of the Employees' Identities Would Violate Their Right to Privacy

Finding that the Employees have a right to privacy in their identities in

connection with unsubstantiated claims of misconduct is not the end of the analysis.

We next must consider whether the Employees' right to privacy would be violated

by disclosure. "A person's 'right to privacy' ... is invaded or violated only if

disclosure of information about the person: ( 1) Would be highly offensive to a

reasonable person, and (2) is not of legitimate concern to the public." RCW

42.56.050.

1. Highly Offensive

While our cases do not define the term "highly offensive," we have addressed

whether the disclosure of certain records would be highly offensive in several cases.

In these cases we have noted that embarrassment alone is not sufficient for a record

to be considered highly offensive. Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d

8 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

995 (1993). In Bellevue John Does we found that disclosing the identities of teachers

accused of sexual misconduct is highly offensive. 164 Wn.2d at 216. Outside the

context of sexual misconduct allegations, we have held that disclosure of records

that discuss employee performance but that do not discuss specific instances of

misconduct, are presumed highly offensive. Dawson, 120 Wn.2d at 797. However,

as noted above, in Morgan we found that specific, substantiated allegations of

inappropriate behavior and outbursts were not as offensive as allegations of sexual

misconduct. 166 Wn.2d at 756.

Here, the allegations were of inappropriate behavior with a former student.

The spreadsheets also disclosed that both Employees were under investigation for

allegations of misconduct. The records, like those in Dawson, did not state specific

instances of misconduct but instead disclosed vague allegations. Unlike the

allegations in Morgan, the records here did not include facts or credibility findings

to substantiate the allegation of inappropriate behavior. As the Court of Appeals

noted, unsubstantiated allegations of misconduct, other than sexual misconduct, can

subject teachers to the same gossip and ridicule without actual evidence of

wrongdoing. Predisik v. Spokane Sch. Dist. No. 81, 179 Wn. App. 513, 520, 319

P.3d 801 (2014) (citing Bellevue John Does, 164 Wn.2d at 220-21). Although the

allegations against the Employees were not sexual misconduct with a minor, the

disclosure of one's identity associated with vague allegations and evidence of

9 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

pending investigations related to one's profession would be highly offensive to a

reasonable person.

2. Legitimate Public Concern

Since disclosure would be highly offensive, we must consider if there is a

legitimate public concern in the identities of the Employees such that the records

must be disclosed. The application of this exemption turns on whether the concern

of the public is legitimate. Dawson, 120 Wn.2d at 798. The term "legitimate" in the

context of the PRA means '"reasonable."' !d. If an allegation is unsubstantiated, the

matter is not of public concern. Bellevue John Does, 164 Wn.2d at 221. Here, the

public does not have a legitimate interest in the names of teachers who are under

investigation for unsubstantiated allegations.

While there is not a legitimate public concern in the names of the teachers, the

public does have a legitimate concern in the leave slip and the spreadsheet. As the

Court of Appeals noted, the public has an interest in seeing that a government agency

conducts itself fairly and uses funds responsibly. Predisik, 179 Wn. App. at 520.

In Bellevue John Does, we found that the teachers' names could be redacted

to protect their privacy interests and such redaction would not harm the public

oversight of agency conduct. 164 Wn.2d at 221-23 (noting that the identities of those

accused of unsubstantiated allegations of misconduct does not aid in effective

government oversight by the public). Furthermore, as the Court of Appeals noted,

10 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

the leave slip and spreadsheets are not highly offensive when the identifying

information is redacted. Predisik, 179 Wn. App. at 520. Therefore the records should

be disclosed but with the identities of the teachers redacted.

The majority notes that there is a legitimate public interest in the identities of

the Employees. Majority at 10. According to the majority, if we redact or withhold

the records, the public would never find out about the investigation until the

allegations were substantiated, and the public has a right to know about employees

who are not performing their duties. Majority at 11. We generally agree. However,

we can uphold both the privacy interest of the Employees and the public's interest

in overseeing government actions by redacting the records. There is no evidence that

the Employees were not performing their duties. See Bellevue John Does, 164 Wn.2d

at 217 ("' [T]he public as a rule has no legitimate interest in finding out the names of

people who have been falsely accused.'" (quoting Bellevue John Does 1-11 v.

Bellevue Sch. Dist. No. 405, 129 Wn. App. 132, 155-57, 120 P.3d 616 (2005))). By

redacting and releasing the documents, the public could learn of the ongoing

investigation and question its effectiveness without violating the privacy of the

Employees. See majority at 11.

11 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

3. Redaction is Sufficient to Protect the Employees ' Privacy Interest

According to the Employees, the records in their entirety are exempt under

the personal information exemption, RCW 42.56.230(3). The Employees contend

that redaction is not sufficient to protect their privacy interest in their identities

because the public records request specifically asked for records related to Predisik,

and therefore the disclosure of records in response to that request necessarily links

his identity to the material.

We have rejected similar arguments. See Koenig v. City of Des Moines, 158

Wn.2d 173, 183-84, 142 P .3d 162 (2006). In Koenig we held that there is no statutory

language or case law to support the argument that we should look beyond the record

at issue to determine whether it is exempt from disclosure. Id. at 183. In Koenig we

created a rule that agencies apply exemptions based only on the information the

record discloses on its face without regard for the request. This rule creates a uniform

disclosure system because it ensures that disclosure will not depend on how the

request is made, but on the individual record at issue. Id.

I would affirm the Court of Appeals. The Employees who are the subjects of

unsubstantiated allegations and pending investigations have a right to privacy in

their identities. This right is violated if the records at issue are disclosed in their

entirety to the public. However, if the identities of the Employees are redacted from

12 Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

the records, the Employees will not have a right to privacy in the records. Therefore,

the records should be redacted and released. Because the majority finds that the

Employees do not have a right to privacy in their identities and holds that the records

at issue be disclosed in their entirety, I respectfully dissent.

13 Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)