The city of Fife has lost a legal battle over disclosure of public records to one of its police officers.
The state Court of Appeals this week upheld a Pierce County Superior Court decision ordering the city to disclose information as part of a records request made by a whistleblower in the Fife Police Department.
The opinion affirmed a ruling by Judge Susan Serko that said the city committed multiple violations of the state Public Records Act, such as omitting the requester’s name from the documents.
The whistleblower was officer Russell Hicks, who is employed by the city but currently works full time as an instructor in Olympia. He filed formal complaints with his Police Department and the Washington Human Rights Commission regarding misbehavior in the police ranks.
His allegations included inappropriate relationships between officers and offenders, including intimate touching; misappropriation of public funds; and employment discrimination based on sex and ethnicity.
Fife launched a series of inside and outside investigations over several years that led to the resignations of a Fife detective and a lieutenant in 2011. One officer broke the law and another engaged in an inappropriate relationship with a subordinate employee.
The police chief at the time and two members of his command staff also faced allegations of inappropriate conduct and discrimination, but an outside investigator determined in 2011 that the conduct either did not happen or could not be proved.
Tuesday’s appeals court ruling stems from those investigations.
In September 2013, Hicks requested all audio recordings, accompanying transcripts and any documents related to the investigations. The city started filling the request in installments, but redacted some of the information.
Hicks responded that the city “unlawfully withheld records responsive to his request” and improperly redacted information from the records that were released, according to court documents.
As the city began releasing some records, they didn’t include names and identifying information for witnesses, accused officers, and the complaining parties’ names and their attorneys, court documents state.
“The city of Fife withheld documents and records in an effort to obstruct Hicks’ investigation into the city of Fife’s violations of the Washington Law Against Discrimination,” the complaint states. It added that the redacted information didn’t qualify for exemption under the state Public Records Act.
The city disagreed. It argued that the undisclosed information didn’t “constitute public records” and was protected by attorney-client privilege. The city also said releasing it would hinder effective law enforcement.
The Pierce County Superior Court last year sided in part with Hicks, ordering Fife to provide all audio and written interview files and investigator-created documents related to the officer’s request.
Fife partly complied with the order but still omitted individuals’ identifying information and modified audio so interview subjects’ voices were unrecognizable.
Again, the Superior Court judge said the city was violating state law, both in the length of time it took to release the records and in the improper redactions, according to the appeals court opinion.
It noted the city’s participation in media coverage of the investigation undermined its claim that the withheld material was exempt from disclosure.
In its ruling Tuesday, the appeals court said the city failed to show that withholding information was necessary to protect the investigation or to safeguard the privacy of witnesses or other individuals. It also said the city didn’t justify leaving out Hicks’ own identifying information.
The court also said the conduct of high-ranking police officials is of great public interest, even when allegations made against them are deemed unfounded or not sustained.
“Under these circumstances, the identities of the accused officers qualify as a matter of legitimate public concern,” the ruling said.
As part of the ruling, Hicks will be awarded costs and reasonable attorney fees incurred on appeal. Penalties and fees from the trial court level also are pending.
This isn’t the first time Fife has redacted names and identifying information from public records.
A News Tribune investigation last year yielded stacks of documents on two Fife corrections officers who resigned in lieu of termination following allegations of sexual misconduct with inmates at the Fife City Jail.
Documents released by the city related to investigations of the two jail officers were heavily blacked out, excluding names of witnesses, the accused officers and inmates.
Fife City Attorney Loren Combs said Wednesday that the city is still analyzing the implications of this week’s appeals court ruling.
“The city is going to comply with whatever the law requires us to provide while protecting privacy rights and the operation of essential government services,” he said. “It’s an always-changing area of the law that really needs to have clarity from the Legislature and not from the courts.”
Hicks’ attorney, James Beck, told The News Tribune that the city still hasn’t provided the unredacted records or unaltered audio recordings.
“We look forward to receiving that information,” Beck said.
Hicks and Beck are also working together in another legal matter against the city related to Hicks’ complaints. The officer filed suit last summer claiming he was the victim of “discrimination, retaliation and (a) hostile work environment" and was wrongfully passed up for promotion on two occasions.