Limstrom v. Ladenburg

Page 595

136 Wn.2d 595

963 P.2d 869

Owen S. LIMSTROM, Respondent, v. John W. LADENBURG, in his capacity as Pierce County Prosecuting Attorney, and Pierce County, a political subdivision of the State of Washington, Petitioners.

No. 65351-8.

Supreme Court of Washington En Banc.

Argued Jan. 27, 1998.

Decided Oct. 1, 1998.

As Amended on Denial of Reconsideration Nov. 16, 1998.

Arthur D. Curtis, Clark County Prosecutor, Richard Alan Melnick, Deputy Clark County Prosecutor, Vancouver, for Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

John Ladenburg, Pierce County Prosecutor, Kitty-Ann Van Doorninck, Deputy Pierce County Prosecutor, Tacoma, for Petitioners.

Law Office of Owen S. Limstrom, Owen Sherman Limstrom, Tacoma, for Respondent.

GUY, Justice.

In this case we are asked to determine the scope of the right afforded a citizen under the public records act to inspect criminal litigation files created and held by a prosecuting attorney. We hold that a citizen has the right to inspect documents, or portions of documents, in a public attorney's criminal litigation file, unless the documents requested would not be available to a party under the discovery rules set forth in the civil rules for superior court, or the information is otherwise protected from disclosure under the state Criminal Records Privacy Act or other statutory provision. We remand to the trial court for an in camera review of the files requested in this case to determine whether the documents, or portions thereof, should be disclosed, and for a determination of costs, attorney fees and penalties.

FACTS

In May 1995, Owen Limstrom, an attorney acting on his own behalf, sent two public disclosure requests to the Pierce County Prosecuting Attorney asking to inspect the prosecutor's litigation files in driving under the influence (DUI) cases in which a particular police officer had been involved. In the first request he asked

to inspect ... any and all files maintained in or by [the prosecutor's office] in which Deputy Eugene Allen, of the Pierce County Sheriff's Department, was involved in where the date of the alleged violation was between February 1994 and May 1994. If you have no way to narrow the cases to those which involved Deputy Allen, then I am requesting to inspect all case files in which the date of the alleged crime was between February 1994 and May 1994, and I will simply spend whatever time it takes to locate Deputy Allen's cases.

Clerk's Papers at 45. ¹

In the second, Mr. Limstrom repeated his request but included a statistical summary of 54 DUI arrests made by Deputy Allen. The summary included the DataMaster serial number for each test, the date of the breath test, the test score, and the suspect's date of birth. The names of the defendants in the cases were not included, but Mr. Limstrom provided the address of another agency to which the prosecutor could apply for help in identifying the defendants. The second request concludes:

If you are not able to obtain, or do not wish to obtain, the names of the individual defendants so as to make compliance with this public disclosure request easier, then I am requesting to inspect all case files in the possession and/or control of your office where the date of the alleged crime was between February 1994 and May 1994, and I will simply spend whatever time it takes to locate Deputy Allen's cases.

Clerk's Papers at 48.

The prosecuting attorney's office denied the request, claiming that, except for charging documents, which are available in the court clerk's office, criminal litigation files developed and held by a prosecutor are, in their entirety, work product and exempt from disclosure under RCW 42.17.310(1)(j) and the Criminal Records Privacy Act, RCW 10.97.

Mr. Limstrom then brought this action to compel disclosure. The trial court denied Mr. Limstrom's motion to compel disclosure because it determined that documents sought by Mr. Limstrom from the files either were the work product of the prosecuting attorney or were available from other sources.

Mr. Limstrom appealed, and the Court of Appeals reversed. Limstrom v. Ladenburg, 85 Wash.App. 524, 933 P.2d 1055, review granted, 133 Wash.2d 1001, 943 P.2d 662 (1997). The Court of Appeals held: the work product of a prosecutor which is exempt from disclosure under the public records act is limited to work product as defined in the superior court criminal discovery rule, CrR 4.7(f)(1); the fact that information was available from other sources did not justify the prosecutor's refusal to disclose the information; the prosecutor acted improperly when he denied Mr. Limstrom's request in its entirety; and the prosecutor should have disclosed those portions of the files which did not fall under the definition of work product contained in CrR 4.7(f)(1). The Court of Appeals held that Mr. Limstrom was entitled to inspect the files and remanded the case for a determinationof attorney fees, costs and penalties to be awarded under RCW 42.17.340(4). ²

We granted review.

ISSUE

Are criminal litigation files created and held by an attorney working for a public agency subject to disclosure under the public records act?

ANALYSIS

We have consistently recognized that Washington's public records act (Act), RCW 42.17.250-.348, is a strongly worded mandate for broad disclosure of public records. Confederated Tribes v. Johnson, 135 Wash.2d 734, 745, 958 P.2d 260 (1998); Amren v. City of Kalama, 131 Wash.2d 25, 31, 929 P.2d 389 (1997); Progressive Animal Welfare Soc'y (PAWS) v. University of Wash., 125 Wash.2d 243, 251, 884 P.2d 592 (1994); Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978).

The purpose of the public disclosure act, in which the public records act is contained, is set forth in its first section as follows:

It is hereby declared by the sovereign people to be the public policy of the state of Washington:

....

(11) That, mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.

RCW 42.17.010.

The public records act additionally provides at RCW 42.17.251:

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. The public records subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy.

In order to promote its purpose, the Act requires all state and local agencies to

make available for public inspection and copying all public records, unless the record falls within the specific exemptions of [the Act], or other statute which exempts or prohibits disclosure of specific information or records.

RCW 42.17.260(1).

The parties involved in this appeal do not dispute that the prosecutor's office is an agency as defined in the Act, RCW 42.17.020(1); Dawson v. Daly, 120 Wash.2d 782, 788, 845 P.2d 995 (1993), or that a prosecutor's files are public records under the Act. RCW 42.17.020(36); Dawson, 120 Wash.2d at 789, 845 P.2d 995. They agree that an agency has a positive duty to disclose public records upon request, unless a specific exemption applies to the records requested. ³ Dawson, 120 Wash.2d at 789, 845 P.2d 995. The primary dispute in this case is whether an attorney's criminal litigation files, in their entirety, are protected from disclosure under the attorney work product exemption set forth in the public records act, RCW 42.17.310(1)(j). ⁴ RCW 42.17.310(1)(j) exempts from public inspection and copying

[r]ecords which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

We read this provision to exempt from disclosure public records which are relevant to a controversy and which are the work product of an agency's attorney. The exemption relies on the rules of pretrial discovery to define the parameters of the work product rule for purposes of applying the exemption. See Dawson, 120 Wash.2d at 789-90, 845 P.2d 995; Overlake Fund v. City of Bellevue, 60 Wash.App. 787, 795, 810 P.2d 507 (1991).

The Court of Appeals applied the discovery rules applicable to criminal cases. The prosecutor argues that CR 26, the rule governing discovery in civil cases, should apply to a public records act request for information from an agency's litigation files. We agree with the prosecutor's position on this point.

Which rule applies under the exemption is significant because the civil rule, CR 26(b)(4), which is based on the common law work product protection, includes within the definition of work product factual information which is collected or gathered by an attorney, as well as the attorney's legal research, theories, opinions and conclusions. See Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Lewis H. Orland, Observations on the Work Product Rule, 29 G ONZ. L. R EV. 281, 282-83 (1993-94). The criminal discovery rule, CrR 4.7(f)(1), is more narrow in its definition of work product, limiting the protection to legal research or documents "to the extent that they contain the opinions, theories or conclusions of investigating or prosecuting agencies."

In determining the meaning of the statutory exemption at issue, we apply general principles of statutory construction. Harmon v. Department of Soc. & Health Servs., 134 Wash.2d 523, 530, 951 P.2d 770 (1998); Western Petroleum Importers, Inc. v. Friedt, 127 Wash.2d...