Kitsap County Superior Court Judge Russell Hartman ruled this afternoon that the public has no legitimate interest in records of two investigations into allegations of misconduct by Officer Steve Cain of the Bainbridge Island Police. Judge Hartman enjoined the City of Bainbridge Island from releasing the records of investigations done by the Mercer Island and Puyallup police departments to Kitsap Sun reporter Tristan Baurick and me.
Both of us made requests for the documents under the state Public Records Act in February. Baurick also submitted a request to the City of Puyallup for disclosure of the criminal investigative report prepared the Puyallup police department for the BIPD. Last week the City of Puyallup released its investigative records to Baurick. The City of Bainbridge Island allowed me to review, but not copy, the Puyallup records in February, and I wrote a post about the contents at that time. Subsequently, the Bainbridge Island Police Guild filed a lawsuit against COBI, Baurick and me to prevent disclosure of records in both investigations.
The two investigations were conducted after islander Kim Koenig complained of being manhandled and sexually abused during a traffic stop last September. She filed a claim for damages against the City of Bainbridge Island in February.
Judge Hartman told the parties that the state Public Records Act is a strongly worded mandate for broad disclosure of public records. Exemptions to the Act must be narrowly construed.
The Public Records Act contains an exemption for investigative records, the nondisclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy. Judge Hartman ruled that disclosure in this case would not interfere with effective law enforcement.
He found, however, that Washington courts differ about the standards for determining when a person’s right to privacy is violated. The Court of Appeals, Division 1, a court covering King County, has ruled that an allegation of misconduct must be “patently false” in order to find the release of misconduct investigation records to be a violation of privacy.
In the Court of Appeals, Division 2, which covers Kitsap County, the standard is different. If the investigation determines the allegations to be “unsubstantiated,” the records are not subject to disclosure. Judge Hartman specifically noted that the Division 2 authority controlled his decision and, because he found the allegations of misconduct to be unsubstantiated, but not “patently false,” he felt bound by Division 2 authority. Thus he ruled that the documents are not of legitimate interest to the public and cannot be released.
He noted, however, that if the “patently false” standard applied, he would have ordered disclosure of the records.
Judge Hartman further noted that the question of which standard of “privacy” applies is currently is on appeal to the Washington Supreme Court and that one of the key issues identified in the appeal is the standard applicable to disclosure of police misconduct investigations. That case has been pending since March of 2007 and a decision is overdue.
The plaintiffs in the case, the Bainbridge Island Police Guild and Officer Steve Cain (named as “John Doe” in the lawsuit pleadings), urged Judge Hartman to extend his order to bar Baurick and the Kitsap Sun from publishing the report they received from the City of Puyallup. Judge Hartman refused to do so, noting neither the City of Puyallup nor the Kitsap Sun are parties and he had no authority to issue any orders impacting them.
Tristan and I have 30 days to decide whether to appeal Judge Hartman’s decision.