Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 75889-1
Title of Case: David Koenig, v. City of Des Moines, et al.
(49656-5,49693-0 & 51918-2-I consol)
File Date: 08/31/2006
Oral Argument Date: 06/28/2005
SOURCE OF APPEAL
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Appeal from Superior Court,
County
Honorable Dean S Lum
JUSTICES
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Authored by Richard B. Sanders
Concurring: James Johnson
Barbara A. Madsen
Gerry L Alexander
Susan Owens
Dissenting: Bobbe J Bridge
Charles W. Johnson
Tom Chambers
Mary Fairhurst
COUNSEL OF RECORD
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Counsel for Petitioner(s)
David Nelson Bruce
Savitt & Bruce LLP
1325 4th Ave Ste 1410
Seattle, WA 98101-2505
Linda Anne Marousek
City of Des Moines
21630 11th Ave S # C
Des Moines, WA 98198-6338
Counsel for Respondent(s)
William John Crittenden
Attorney at Law
927 N Northlake Way Ste 301
Seattle, WA 98103-3406
Elena Luisa Garella
Attorney at Law
927 N Northlake Way Ste 301
Seattle, WA 98103-3406
Amicus Curiae on behalf of ACLU of Washington
Aaron Hugh Caplan
Attorney at Law
Aclu of Washington
705 2nd Ave Ste 300
Seattle, WA 98104-1799
Douglas B Klunder
Attorney at Law
1603 45th Ave SW
Seattle, WA 98116-1625
Amicus Curiae on behalf of Allied Daily Newspapers of Washington Inc
Michele Lynn Earl-Hubbard
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Michael John Killeen
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Eric B Martin
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Amicus Curiae on behalf of Washington Newspaper Publishers Association
Michele Lynn Earl-Hubbard
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Michael John Killeen
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Eric B Martin
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys
Pamela Beth Loginsky
Washington Assoc of Prosecuting Atty
206 10th Ave SE
Olympia, WA 98501-1399
Amicus Curiae on behalf of Attorney General of Washington
William Berggren Collins
Attorney at Law
Higways Licenses Bldg
PO Box 40100
Olympia, WA 98504-0100
Amicus Curiae on behalf of Northwest Womens Law Center
Sara Lyle Ainsworth
Northwest Women's Law Center
907 Pine St Ste 500
Seattle, WA 98101-1818
Catherine Carroll
WA Coalition of Sexual Assault Programs
2415 Pacific Ave SE
Olympia, WA 98501-8808
Amicus Curiae on behalf of Washington State Coalition of Sexual Assault Programs
Sara Lyle Ainsworth
Northwest Women's Law Center
907 Pine St Ste 500
Seattle, WA 98101-1818
Catherine Carroll
WA Coalition of Sexual Assault Programs
2415 Pacific Ave SE
Olympia, WA 98501-8808
Amicus Curiae on behalf of WASHINGTON COALITION FOR OPEN GOVERNMENT
Michele Lynn Earl-Hubbard
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Amicus Curiae on behalf of EVERGREEN FREEDOM FOUNDATION
Michele Lynn Earl-Hubbard
Davis Wright Tremaine LLP
1501 4th Ave Ste 2600
Seattle, WA 98101-1688
Amicus Curiae on behalf of WASHINGTON STATE ASSOC OF MUNICIPAL ATTORNEYS
Robert Gerard Jr Beaumier
Office of the City Attorney
808 W Spokane Falls Blvd Fl 5
Spokane, WA 99201-3333
Rocco Nicholas Treppiedi
Spokane City Attorney's Office
808 W Spokane Falls Blvd
Spokane, WA 99201-3333
FAIRHURST, J. (dissenting) - The city of Des Moines properly withheld the
public records that David Koenig requested because it would necessarily
have identified a child victim of sexual assault in violation of former RCW
42.17.31901 (1992)1 by complying with his request. I would hold that the
records were exempt in their entirety and, thus, reverse the Court of
Appeals. To hold otherwise would be to swallow entirely the protection
that former RCW 42.17.31901 affords to child victims of sexual assault. I
dissent.
I. ANALYSIS
Our review must begin by clarifying the scope of the main issue before us.
At times during briefing at each level of judicial review, the issue of
whether Koenig would have been able to obtain the records at issue by
virtue of his parental relationship to the minor victim or through other
avenues has been discussed. But the focus of Koenig's suit presently on
appeal is whether the records are exempt from or subject to public
disclosure. "The fact that material may be available in other records is
not a reason stated in the act for failure to disclose." Hearst Corp. v.
Hoppe, 90 Wn.2d 123, 132, 580 P.2d 246 (1978). Koenig has chosen to
litigate only whether the records are exempt from public disclosure
requirements. By doing so, he is asking this court to hold that any member
of the public who requests the sexual assault file of a child victim by
naming the child is entitled to receive that specific file. Koenig's
relationship with the victim is irrelevant, as "{a}gencies shall not
distinguish among persons requesting records, and such persons shall not be
required to provide information as to the purpose for the request except to
establish whether inspection and copying would violate {any} statute which
exempts or prohibits disclosure of specific information or records to
certain persons." Former RCW 42.17.270 (1987).2
As the majority itself acknowledges, the legislature passed former RCW
42.17.31901 for the express purpose of "'assur{ing} child victims of sexual
assault and their families that the identities and locations of child
victims will remain confidential.'" Majority at 12-13 (quoting Laws of
1992, ch. 188, sec. 1). It is axiomatic, therefore, that when a public
disclosure request is so specific that it asks for police records only with
respect to one named child victim of sexual assault, the responding agency
is prohibited from turning over the requested records to prevent "revealing
the identity of child victims of sexual assault." Former RCW 42.17.31901.
That is, if the requester asks for the records of one named victim and the
agency turns over those records to the requester, then all the redaction in
the world cannot possibly prevent the requester from linking the
information surrounding the sexual assault with the identification of the
child victim. Any redaction would be meaningless; it is the act of
complying with the public records request that identifies an individual as
a child victim of sexual assault and links specific--often-times graphic or
offensive--information contained within a report to one specifically named
child.
Koenig argues that because "identifying information" means "the child
victim's name, address, location, photograph," and "relationship between
the child and the alleged perpetrator," the city's duty to comply with
former RCW 42.17.31901 is limited to redacting such information without
regard to the fact that its very compliance with a public disclosure
request contradicts that redaction. Resp't/Cross Appellant's Resp. Br. at
4 (quoting former RCW 42.17.31901). He argues that the rule that courts
must read exemptions narrowly requires us to so limit former RCW
42.17.31901. See former RCW 42.17.251 (1992)3 ("The public records
subdivision of this chapter shall be liberally construed and its exemptions
narrowly construed").
However, in cases such as the present one, when a requester asks only for
the records of one specifically named individual, the very act of complying
with the request violates former RCW 42.17.31901 and what the statute
prohibits--revealing the identity of child victims of sexual assault who
are under age 18. Here, redacting the "identifying information" does
nothing to prevent the identification of a specifically named person as a
child victim of sexual assault. Further, the redaction requirement found
in former RCW 42.17.310(2) (1996)4 does not apply to former RCW
42.17.31901.5 See Progressive Animal Welfare Soc'y v. Univ. of Wash., 125
Wn.2d 243, 261 n.8, 884 P.2d 592 (1994) ("This requirement applies by its
terms only to those exemptions at RCW 42.17.310. The 10 exemptions listed
in RCW 42.17.312-.31902 are therefore not subject to the redaction
requirement of RCW 42.17.310(2).").6
Koenig also argues that conditioning compliance of a public disclosure
request based on the knowledge of the requester is prohibited. But to deny
a request as specific as his is not based on the knowledge of the requester
but on the nature of the request. This is not the same as denying
disclosure by reason of the requester's identity or purpose for seeking the
records. See Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d 995 (1993)
(prohibiting consideration of "the identity of the requesting party or the
purpose of the request" in determining whether a particular record is of
legitimate public concern).
The underlying problem with the majority's holding is that while it
acknowledges, as it must, that the overarching purpose of former RCW
42.17.31901 is to protect the identity of child victims of sexual assault
from public disclosure, it equates requesting records for a specifically
named individual to requesting records using a case number or the name of
the assailant, as if there is no difference between the two. Majority at
8. By making this specific comparison, the majority demonstrates its
fundamental misunderstanding of the issue.
If a person makes a public records request using the case number or name of
the assailant but does not specifically name an individual as the subject
of the records sought and the requester nonetheless deduces the identity of
the individual who is the subject of such records, the city does not reveal
the individual's identity. In contrast, when a requester asks for Jane
Doe's sexual assault records, the city, by disclosing such records,
positively informs the requester that Jane Doe is a child victim of sexual
assault and the subject of the produced records. Although the majority
emphasizes the fact that a requester could deduce the subject's identity by
employing a variety of methods, the city violates former RCW 42.17.31901
only if it discloses the identity of the individual. The city necessarily
discloses the identity of the individual when the requester asks for the
records of a specific individual.
Even the Court of Appeals recognized the logic of this argument--that when
a request specifically identifies the individual about whom records are
sought, the entire record should be exempt because to disclose the record
with identifying information blacked out would be meaningless protection in
light of the nature of the request. Koenig v. City of Des Moines, 123 Wn.
App. 285, 95 P.3d 777 (2004). However, that court erroneously held that
the plain language of the statute exempted "specifically defined
information from disclosure, and nothing more" because it failed to
consider how absurd and unreasonable the results would be. Id. at 294.
Similarly, the majority claims we must seek support from statutory language
or case law to "look beyond the four corners of the records at issue to
determine if they were properly withheld." Majority at 9. However, simple
common sense will suffice to determine that the majority's application of
the statute will lead to absurd results. "Unlikely, absurd or strained
consequences resulting from a literal reading {of a statute} should be
avoided." State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992).
Under the majority's ruling, any person or entity (including a newspaper)
may simply walk into an agency and request "any information you have where
{insert name of person} was a victim of sexual assault when she was under
18 years of age," and the agency would be required to turn over such
records, redacting only the victim's name and other "identifying
information," knowing full well that the redaction accomplishes nothing
because by fulfilling the request the disclosing agency has positively
identified the named person as a child victim of sexual assault.
III. CONCLUSION
I would reverse the Court of Appeals and hold that the public records at
issue were exempt from disclosure pursuant to former RCW 42.17.31901.
AUTHOR:
Justice Mary E. Fairhurst
WE CONCUR:
Justice Tom Chambers
Justice Charles W. Johnson
Justice Bobbe J. Bridge
1Repealed by Laws of 2005, ch. 274, sec. 429 (effective July 1, 2006),
and recodified at RCW 42.56.240(5) (Laws of 2005, ch. 274, sec. 404).
2Recodified as RCW 42.56.080 (Laws of 2005, ch. 274, sec. 103), and
amended by Laws of 2005, ch. 274, sec. 285.
3Recodified as RCW 42.56.030 (Laws of 2005, ch. 274, sec. 103), and
amended by Laws of 2005, ch. 274, sec. 283.
4Recodified as 42.56.210(1) (Laws of 2005, ch. 274, sec. 103), and
reenacted and amended by Laws of 2005, ch. 274, sec. 402.
5The majority claims that rather than arguing that the records at issue
here are exempt from disclosure because they contain identifying
information, I am arguing only that they are exempt because the redaction
requirement does not apply to former RCW 42.17.31901. Majority at 8 n.7.
The majority misconstrues my position; I am arguing both. The redaction
requirement does not apply to requests made under former RCW 42.17.31901.
However, even if such requests were subject to redaction and the city
redacted the identifying information, the city would be disclosing the
victim's identity because Koenig named the victim in his request. The
majority also claims that when the legislature recodified the public
records act in 2005, the section relating to records of child victims of
sexual assault became subject to the redaction requirement. Majority at 8
n.7. However, as my argument above demonstrates, that change does not
alter my analysis of the circumstances presented here.
6The majority claims that my reliance on this statement is misplaced
because the plain language of former RCW 42.17.31901 prohibits only
disclosure of identifying information, not entire records. Majority at 8
n.7. However, the text of former RCW 42.17.31901 clearly prohibits the
city from providing 'information revealing the identity of' the victim.
Even if the city removed information from the records that revealed the
victim's identity, the fact remains that Koenig already knew the victim's
identity because he named the victim in his request. Thus, the only way
the city could avoid revealing the victim's identity was to withhold the
record.