Category Archives: Public Records Act

Why are we just now hearing about Josh Brown’s May 2015 arrest?

News broke last week of a May 2015 arrest for current New York Gian kicker Josh Brown. The NFL has suspended Brown for the first game of the season. When the NFL announced the suspension last week it sent the media, and me, on a rush to make public records requests to the King County Sheriff’s Office and the King County Prosecutor’s Office to find out more about the incident that took place more than a year ago. The public records request produced the entire investigation of Brown after he was arrested for domestic violence assault in 2015 and, as reported by ESPN and numerous other media outlets, the records also allege numerous other allegations of abuse beyond the May 2015 allegation. So,  why are we just now hearing of Brown’s arrest?

Based on public records obtained, and a search of the Court’s Judicial Information System, it appears that Brown was arrested on May 22, 2015 for allegedly assaulting his ex-wife. Washington has a mandatory domestic violence arrest law (RCW 10.99.030 and RCW 10.31.100) where police must arrest a suspect when there is probable cause to believe a domestic violence assault has occurred. After being arrested and booked into the King County Jail, Brown posted $2,000 bail and was released. On May 27, 2015, there was a court hearing in King County District Court where the  prosecutor announced they were declining to file charges.

In King County District Court the prosecutor routinely declines to file charges right away because the statute of limitations is two years for gross misdemeanors (three years for felonies), and the prosecutor likes to have their investigation complete before officially filing criminal charges (although charges may be filed right away on more serious offenses and also where the suspect is a risk to flee the state). The prosecutor never did file charges against Brown and based on a May 24, 2016 memo the prosecutor sent to the King County Sheriff’s Office, it appears they will not be filing any charges without receiving statements from additional witnesses (which they were never able to obtain). Technically, the statute of limitation on the case has not run so the prosecutor could still charge Brown with a crime. But this appears to be extremely unlikely to occur.  The NFL does not need proof beyond a reasonable doubt to impose a suspension like the prosecutor does to convict someone of a crime.  So in the end, Brown was arrested for the assault, but he has never been charged with a crime.

So why is so much information available to the public when no charges were even filed. And is there anything Brown could have done about it (or Brown’s ex-wife, who may not be happy about the release of so much personal information about her as well)? RCW 42.56.540 does allow a person to seek an injunction from the court which would prevent the release of a public record if they can show the “examination [of the record] would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions.” So, in theory, Brown could have filed a motion in court and if granted, the injunction would have prevented the world from obtaining these police reports. Now that the records are public, it is too late to seek such an injunction so Brown will have to live with all of the allegations being made public.

Washington Supreme Court rules level I sex offender information subject to public disclosure

In the recent decision, John Doe A v. Washington State Patrol, the Washington Supreme Court ruled that information relating to Level I sex offenders was subject to public disclosure under the state’s Public Records Act. Level I is the lowest classification for sex offenders.  RCW 4.24.550 attempts to dictate what information on sex offenders law enforcement should disclose and who to. RCW 4.24.550 is not under the Public Records Act, and is instead under chapter 4 of the RCWs, which covers general civil procedure statutes. Accordingly, it is an “other statute” under the Public Records Act. Any time an “other statute” attempts to exempt information under the Public Records Act, the courts must decide whether this “other statute” trumps the Public Records Act’s mandate for broad disclosure of public records.

The specific statute at issue was RCW 4.24.550(3)(a), which applies to level I sex offenders, and states, “the agency shall share information with other appropriate law enforcement agencies and, if the offender is a student, the public or private school regulated under Title 28A RCW or chapter 72.40 RCW which the offender is attending, or planning to attend. The agency may disclose, upon request, relevant, necessary, and accurate information to any victim or witness to the offense, any individual community member who lives near the residence where the offender resides, expects to reside, or is regularly found, and any individual who requests information regarding a specific offender.”

Donna Zink made a public records request for information on Level I sex offenders (and other sex offenders). The Washington State Patrol was in favor of releasing these records, but before releasing the records, notified the sex offenders of their right to get an injunction under RCW 42.56.540 (the law in the Public Records Act that allows injunctions). The Level I sex offenders filed a law suit against the Washington State Patrol to get the injunction.

Ultimately, the court ruled that RCW 4.24.550(3)(a) did not expressly exempt this information from public disclosure. And without an express exemption, the information must be disclosed under the Public Records Act. So Ms. Zink won, and the Level I sex offenders lost. Ms. Zink also asked for attorney fees claiming the WSP delayed the records to her by notifying the Level I sex offenders. The court rejected this argument because Ms. Zink prevailed against the Level I sex offenders, not the WSP. And the WSP was within their right to notify the Level I sex offenders about the release of their records.

How the legislature reacts to this decision will be interesting. By passing RCW 4.24.550(3)(a), the legislature clearly intended to limit the release of information of Level I sex offenders to the public. But by failing to clearly exempt this information, RCW 4.24.550(3)(a) failed in its intended goal. Will the legislature amend this statute to clearly exempt this information? If they do, it may be too late for the Level I sex offenders because once the information is released, and posted on the internet, then there is nothing the legislature can do to get that information off of the internet.

Anonymous whistleblower complaint filed against Pierce County Prosecutor Lindquist

The Tacoma News Tribune recently had an article about the anonymous whistleblower complaint that was recently filed against Perice County Prosecuting Attorney Mark Lindquist. The complaint accuses Prosecutor Lindquist of violating the National Labor Relations Act, the Family Leave Act, the Equal Employment Act, the Public Records Act, the Due Process and Equal Protection Clauses, and Violation of the Whistleblower acts. The complaint also accuses Prosecutor Lindquist of wasting public funds and abusing his authority. If you would like to read the complaint, in its entirety, you can view the document here.

Should police officers purchase their own body cameras?

police-body-camRecently, there has been a lot of news about police body cameras. Police cameras, whether they are affixed to the patrol vehicle, or on the officer’s body, are great because they offer an objective view of contentious encounters with the public. Many police misconduct cases can only be proved by video evidence. However, because of strong public records laws in Washington State, it is not as simple as purchasing and installing the new technology. Governments must also take steps to properly preserve the digital recordings and provide these recordings to the public, upon request. As you can imagine, categorizing and preserving massive amounts of digital recordings is no easy task.

According to this article, some officers outside of Washington State are frustrated by government regulations and budgets preventing the issuance of the body cameras. Instead, these officers have gone out and purchased their own body cameras to record their interactions with the public. I am not surprised by this. Many officers are happy to have their contact with the public recorded to ensure they are not falsely accused of misconduct. Unfortunately, police in Washington State would likely violate the Public Records Act if they simply installed their own personal equipment. The Public Records Act would require the officers to store all recordings, and timely provide these recordings to the public upon request. Failure to do so would trigger penalties that can be quite costly for the government. Bottom line, body cameras are coming to Washington State. But the cameras have to be implemented by the government, itself, in order to ensure compliance with the Public Records Act.