Last week, King County Superior Court Judge James Rogers issued an opinion resolving a dispute between KOMO reporter Tracy Vedder (“KOMO”) and the Seattle Police Department (“SPD”) regarding access to SPD “dash-camera” videos under the Public Records Act (“PRA”). Judge Rogers’s decision has gotten some publicity, which is not surprising given the public nature of the dispute, so I figured the case and the surrounding publicity would be worth some discussion here on the blog. But before I talk about the pub, I should probably do my best to summarize what Judge Rogers actually decided.
KOMO’s First Two Requests (and the Court’s Decision as to Them) — i.e., the Part You Should Skip
KOMO made three separate requests of the SPD under the PRA. Judge Rogers addressed them separately, and so will I. Request 1 sought “log sheets” for dash-cam videos. Because “log sheets” is a specifically defined term and the SPD had no responsive log sheets, Judge Rogers held that it was fine for SPD to just tell KOMO there were no log sheets. I think that decision was pretty uncontroversial.
Request 2 sought a list of dash-cam videos “tagged for retention” along with information such as the date and the officer’s badge number. The City initially thought that SPD did not have a report that provided the requested information. The PRA does not require a responding department to create documents that did not previously exist. So while the City worked with KOMO to provide other related information, it did not initially provide the requested information. Later, however, the City realized that the SPD did have the capability to produce the requested report and it did so — a year after KOMO’s initial request.
Judge Rogers held that this delay, while not “reckless, wanton or bad faith,” was a delay nonetheless. It was the City’s own fault for not knowing what its own system could produce and for delaying the production to KOMO. Accordingly, Judge Rogers ordered the City to pay a fine and KOMO’s attorneys’ fees as a penalty for the delay. That seems fair enough to me. Again, there’s nothing too controversial here.
KOMO’s Third Request — The PRA and the Privacy Act
Request 3 sought particular dash-cam videos themselves. This is the issue that has been getting all the attention from the press. Here’s the deal: Ch. 9.73 RCW, which I’ll call the Privacy Act, applies to dash-cam videos. It states the following:
No sound or video recording made under this subsection . . . may be duplicated and made available to the public by a law enforcement agency subject to this section until final disposition of any criminal or civil litigation which arises from the event or events which were recorded.
RCW 9.73.090(1)(c). Accordingly, the SPD is statutorily required to withhold dash-cam videos from the public until “final disposition” of any litigation related to the events in the video.
You can see the problem here. The statute does not provide any guidance as to when or how the SPD is supposed to determine that related litigation has reached the final disposition. After a video is recorded, a related case will not be filed immediately. There is going to be some lag before a case is filed, if one is filed at all. The SPD can’t determine before the fact whether a video is going to be subject to litigation. And the legislature did not provide any guidance regarding the sorts of factors or purposes the SPD should consider in interpreting the statutory requirement to withhold the videos. Judge Rogers himself specifically noted that the Privacy Act is ambiguous on this point.
In the face of this ambiguity, the SPD promulgated the following retention policy: The SPD will not release videos until three years following their creation. The period of three years was chosen (according to the SPD) because it coincides with the statute of limitations for tort claims. Prior to the expiration of three years, the City apparently assumes that litigation could still commence and that release of the video would therefore violate the Privacy Act’s “wait until all litigation is over” requirement. However, as an exception to this general policy, the City will release videos before three years in two circumstances: (1) to people in the videos, or (2) pursuant to the discovery process in connection with already-pending criminal or civil litigation related to events in the videos.
But here’s what’s got everybody up in arms: Pursuant to the SPD retention policy, after three years the SPD destroys the dash-cam videos. In other words, you can’t get the videos until three years after they are made, and three years after they are made they are destroyed. Judge Rogers agreed with KOMO that this policy creates a “Catch-22” for individuals requesting videos. Not surprisingly, he went on to extensively criticize the policy.
Maybe I’m missing something, but I don’t get it. The tone of Judge Rogers’s opinion, the references to Catch-22, and the outrage from the press (we’ll get to that) all make it seem that the SPD has effectively regulated itself out of the PRA’s disclosure requirements — that is, the SPD can refuse to turn over the tapes for three years (under its interpretation of the Privacy Act) and then refuse to turn over the tapes because it’s destroyed them (under its retention policy). If that were true, I think it would be a problem. But I don’t think that’s true.
As Judge Rogers notes, the PRA “provides that if a record request is made at a time when a record exists but is slated for destruction . . . , the agency shall retain the record until the request is resolved.” (emphasis added). So if a PRA request for a video comes in before the three-year period ends, that requester is not out of luck; she just has to wait until the expiration of the three-year period to get the video. But she will get it. That seems to be exactly what happened here (although I admit it’s a bit unclear from the factual recitation in the opinion). Judge Rogers is not writing about a situation where the SPD refused to turn over videos because it destroyed them. Rather, the opinion states that the relevant question is whether the City had a “legal responsibility to turn over in-car videos before three years had elapsed.” So it seems that KOMO got the videos. It just got them later than it wanted to get them. (But if you have a greater knowledge of the facts of the case, please do let me know.)
The opinion does not squarely resolve the parties’ dispute. On the very narrowest level, Judge Rogers’s decision does not penalize the SPD for withholding the videos because “the City had no legal responsibility to turn over in-car videos before three years had elapsed.” He concluded that the Privacy Act permitted the SPD to “delay the release” of the videos. Accordingly, on the facts of this case he finds in favor of the City. But that is only on the narrowest level of the decision.
Judge Rogers’s Criticism of SPD Policy (Despite Ruling in the City’s Favor)
On a broader level, Judge Rogers had nothing nice to say about the SPD’s policies. He observed that it often takes a requester some time to collect information before she knows what videos to request under the PRA. “Citizens must be allowed a reasonable time to make their requests, receives their responses and complete the inquiry. The three year records retention policy is contrary to the PRA as regards to in-car videos.” (emphasis added.) Accordingly, Judge Rogers apparently ordered the SPD to change its policies. However, he “does not specific [sic] herein what the policy should be.”
I should add that this holding/order is unclear to me. The opinion does not penalize the City for not turning over the tapes. But it does conclude that the SPD police is “contrary to the PRA” and orders the SPD to change its police to comply. It’s a bit confusing.
Anyway, despite having already decided that the SPD’s policy “is contrary to the PRA,” Judge Rogers went on to discuss whether the policy is nonetheless “lawful” because of its exceptions for disclosure (1) to persons in the video and (2) pursuant to discovery procedures. According to Judge Rogers, the exceptions do not save the SPD’s policy. Indeed, he seemed to view the exceptions as additional points against the policy. The exceptions are “overbroad” because, according to Judge Rogers, a litigant needs to conduct a CR 11 investigation before filing a complaint, and therefore should have access to the videos as part of that investigation. Judge Rogers did not want to put lawyers “in the position of being required to file a claim just to see the video, or failing to file within the statute of limitations for lack of access to a video that might have led to a filing.” While the Court disapproved of the scope of the exception, it did “not define what may be someone who has a potential claim against the City, or what threshold may need to be met, but leaves it to the City to arrive at a lawful and more reasonable procedure.”
At that point in the opinion, it seemed Judge Rogers had said all that needed to be said about the SPD policy (and perhaps more). But he continued, asking: “Is a three year time period a narrow and reasonable interpretation of the statute?” Then, after noting that many tort cases are not filed until just before the three-year period is up, and that many claims have longer statutes of limitations, Judge Rogers stated that “the City has reasonably interpreted the statute at issue, as long as it is carried out within the parameters of this decision.” (emphasis added.) Accordingly, he concluded that the SPD policy “is consistent with a narrow application of the statute within the confines of the ruling herein.” (emphasis added.)
Responses to Judge Rogers’s Decision (Including Mine!)
It is no surprise that Seattle Weekly calls the case a “puzzling victory” for the City. Indeed, you could argue that it is not a victory at all. The City has been ordered (I think) to redo its entire retention policy and interpretation of the Privacy Act, despite the fact that both policies were (somewhat?) endorsed by Judge Rogers. Or maybe not. As KOMO attorney Judith Endejan said: “I’ve read the ruling over 12 times . . . . If you can figure it out, you win a prize.” She claimed to be “baffled.”
So what to make of the opinion? Seattle Weekly calls the SPD policy — and the Court’s luke-warm disapproving approval-like result — “absurd” because of the allowance for destruction of the tapes after three years. According to Seattle Weekly, “any member of the public who then wants [the videos] better be prepared to dig through the landfill.” The Seattle Times article on the decision (by Mike Carter) echoes the “Catch-22” theme, stating: “The upshot [of the SPD policy] has been that the videos can be legally destroyed by police before they can be released through the Public Disclosure Act.” And of course, KOMO disagrees with the holding, proclaiming that it “keep fighting for access to those videos.”
I have my criticisms of the Court’s opinion (more on that later) but failing to adequately eliminate a “Catch-22” is not one of them. First of all, everyone seems to be saying that the City won. I mean, sure, the City did not have to pay a penalty for delayed disclosure in this specific case. But the City has bigger concerns than just this case; the City is a repeat player. Judge Rogers ordered the SPD to redraft its retention policy and its interpretation of the Privacy Act as applied to dash-cam videos. I would not call that a win or a vindication for a “Catch-22.”
Second of all, there is no Catch-22. Even if you disagree with the SPD’s specific three-year policy, the Privacy Act requires some amount of delay before the release of dash-cam videos. So what should happen during that waiting period? Well, a person can request a video, the SPD can log the request, and at the end of the waiting period the SPD can provide the video. That’s just fine! Everyone seems to be panicking, however, because the Privacy Act waiting period of three years is exactly equal to the retention period of three years, after which time the videos are destroyed. But if I read the opinion correctly — and admittedly, that is big if — the videos are not destroyed at the end of the three-year period if, during the three-year period, someone requested the video under the PRA. So what’s the problem? If you requested the video before the deadline for destruction, then you’ll get it; if you’re too late, then you won’t. That’s how all retention policies work.
And I think we all agree that the SPD needs to have some retention policy that allows it to destroy the videos at some point. According to the Seattle Times, we are talking about an ever-growing archive of multiple terabytes of video data. In any event, no matter what the retention period is (and it needs to be something) if someone asks for a copy of the video after the retention period expires, then they are not going to get the video. The parallelism of the two three-year periods may cause an appearance that some sort of mischief is being worked, but it is no worse than any other retention policy. Retention policies are like statutes of limitations — they are meant to provide repose after some reasonable period. (We’ll get to who determines “reasonable” in a minute.)
Another purportedly Catch-22-ish situation is that of the lawyer who must conduct a CR 11 investigation prior to filing a complaint, but would not have pre-filing access to potentially relevant videos before the three-year period expires. Again, I think this is an illusory problem. First and foremost, if the video actually involves the lawyer’s client, then she would have access to the video under the City’s policy. Second, if the lawyer fears pre-litigation destruction of videos, I would hope/think a run-of-the-mill litigation hold letter would suffice to resolve that issue. And lastly, I don’t think it is a fair reading of CR 11 to require a lawyer to review evidence that she cannot obtain prior to filing a complaint. If she has a good faith belief in the facts of the claim, based on evidence other than the video, then she can plead the supposed contents of the video on information and belief and subsequently request the video through the discovery process after she’s filed the complaint. Sure, this might lead to more complaints being filed against the City, if a pre-filing review of the video might have avoided litigation, but: (1) If the City wants be litigious and force people to sue the City, isn’t that the City’s choice? (2) Once the video is disclosed, if the lawyer then no longer has a good faith belief in the case, then at that point she can withdraw the claim. Either way, she will have complied with her ethical and CR 11 obligations, I would think.
On a more general note, I agree that the decision is somewhat opaque. The reason for this (in my opinion) is that the decision contains no discussion of either the applicable burden of proof or the standard of review. For example, there is much discussion of the City’s three-year waiting period as an implementation of the Privacy Act’s vague “wait until litigation is over” requirement. Judge Rogers criticizes it, instructs the City to change it, says it is overbroad, and so on. At one point, he asks whether the three-year time period is a “narrow and reasonable interpretation of the [Privacy Act].” But why is that the relevant inquiry? Is “narrow and reasonable” the standard of review for the City’s promulgation of a regulation to clarify a vague statutory command? Does the Administrative Procedure Act apply, which would require that the rule be upheld unless it (1) is unconstitutional, (2) exceeds statutory authority, (3) was adopted in violation of rule-making procedures, or (4) arbitrary and capricious? See RCW 34.05.570(2)(c). I have no idea if the APA would apply here or if some other standard applies. But there must be some proper level of review of the City’s implementation of the Privacy Act. However, without expressly articulating a standard, Judge Rogers appears to engage in a de novo review of the policy, recommending changes and substituting his own judgment for that of the City and the SPD in determining a retention policy.
Nor does the decision discuss who has the burden of supporting or defeating the City’s policies. Is the City’s three-year waiting period presumed valid, with the burden on KOMO to show that it is invalid? Or does the City have the burden of justifying its policy? I’m not sure, but the opinion does not address these questions.
Moreover, on my reading of the decision, the portion regarding the SPD’s destruction policy was entirely unnecessary — unless the City actually destroyed or threatened destruction of videos that had been requested by KOMO. I see no evidence from the opinion that the City did so; indeed, as discussed above, it seems that the issue was limited to the City’s decision to delay producing the requested video’s to KOMO, not whether to produce them at all. Absent a destroyed requested video, however, the policy was not at issue. Accordingly, my sense is that Judge Rogers had no reason to review it, invalidate it, or amend it by recommendation.
Policy Considerations of the Privacy Act and the PRA
In conclusion (cue mock cheering a la Bill Clinton at the 1988 convention (cut to the 32:22 mark)), I want to add a few words about the Seattle Times editorial on the decision, the PRA, and the Privacy Act. The Times doesn’t take issue with Judge Rogers’s decision, but they don’t like the outcome:
Police departments . . . should make dash-camera videos available to people who request them under the state Public Records Act. If this violates state law on privacy, . . . the law should be changed.
Why? Well, the Times admits that it might be “unfair” to release videos showing police interactions with innocent citizens — perhaps even interactions in the privacy of those citizens’ homes — but such unfairness is necessary because of an “overriding social concern.” That concern? Police misconduct. According to the Times, “Video technology provides a kind of disinfectant. Police, like everyone else, behave better if they know people are watching.” They point out that “videos of police encounters helped to contribute to appropriate scrutiny on Seattle Police by the federal Department of Justice.”
That all sounds great, but it strikes me as entirely self-interested. I agree that the police will behave better if they know people are watching. But people already are watching. The videos exist. And those videos are already available to the people who are in the videos or who are litigating against the SPD or the City. In other words, if an individual is abused by the police, then that individual will have access to the relevant video. And if the DOJ wants access to the videos to protect Seattle’s citizens or investigate the SPD, I am confident that the DOJ can get the videos no matter what the Privacy Act or Judge Rogers says. After all, the Privacy Act prohibits making the videos “available to the public.” It says nothing about responding to a DOJ subpoena. I’m not worried about the DOJ.
No, I suspect that the Times is less concerned with individual citizens or the DOJ and more concerned with the Times. They want access to the videos, as well they should! That’s the press’s job. But why would a person trust the Times with an embarrassing video of the police breaking into the privacy of her home? If that person doesn’t want to sue and she doesn’t want to complain to the police or the Attorney General’s office or the District Attorney or some other official, isn’t it her right to keep that video private? Or does the Times‘ interest in selling papers trump her right to privacy? And even if I were to trust the Times, the PRA does not apply to the Times alone — it applies to Tosh.0, or crude people with YouTube channels, or someone trying to discredit or disgrace a rival. Those folks have no interest in protecting against police misconduct; their only interest is themselves. If we give the videos to the Times in the name of press freedom and accountability, then we have to give the videos to those other folks too.
The police have tremendous power to enter people’s homes and invade their privacy. That power, while limited, is granted pursuant to a deal we make with them to protect us and be accountable to us. When they breach that deal, as they sometimes do, we hold them accountable — whether at the polls or in the streets. But we have no such deal with the Seattle Times or some gossip blog or some guy you know from work or anyone who can make a PRA request for arrest videos. So I don’t think we necessarily be pushing to let all of those people into our homes and invade our privacy along with the police. We should be able to keep our eyes on the police by videotaping their conduct without simultaneously giving up our right to keep other people’s eyes off ourselves.
There was a story in the Seattle P-I yesterday stating that the City is now working to change the law to allow for the immediate release of the videos — presumably for accountability purposes. That’s good on the City. But I hope any change in the law would also serve to protect the identities of private individuals in the videos. Perhaps there could be mandatory blurring of individuals’ faces or other identifying features in all released videos. And perhaps there could be a procedure by which an individual receive (1) notice and (2) an opportunity to object before a video in which he is depicted is released, regardless of face blurring. For example, I would want to be able to object to the release of a police video taken in my apartment, even if my face were blurred out. Anyway, a change to the law is a start, but for now we’re stuck with the laws we have.