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                                                                       Sui.JIIilrne Court Clark




           IN THE SUPREME COURT OF THE STATE OF WASHINGTON




EVAN SARGENT,                                    )
                                                 )      No. 87417-4
                         Petitioner,             )
                                                 )
      v.                                         )      EnBanc
                                                 )
SEATTLE POLICE DEPARTMENT,                       )
                                                 )
                         Respondent.             )      Filed         DEC 1 Dtu!.
                                                                       :.    'lf1'J



       MADSEN, C.J.-At issue is the proper scope of the effective law enforcement

exemption of the Public Records Act (PRA), chapter 42.56 RCW. The Seattle Police

Department (SPD) used this exemption to justify nondisclosure of documents regarding

the investigation of an altercation between petitioner Evan Sargent and an SPD officer.

Sargent raises several challenges to the Court of Appeals decision holding that the

effective law enforcement exemption applies categorically to an investigation file where

the prosecutor has declined to file charges and has referred the case back to the SPD for

follow-up investigation and to information contained in an internal investigation file.
No. 87417-4


       We hold that the exemption does not apply categorically to the requested criminal

investigation information or to the requested internal investigation information. Further,

although we agree with the Court of Appeals that the exemption does not apply

categorically to witness identification, we hold that remand on this issue is not warranted.

We agree with the Court of Appeals that the SPD properly withheld Sargent's

nonconviction information under the Washington State Criminal Records Privacy Act

(CRPA), chapter 10.97 RCW, and that the Court of Appeals correctly remanded for

reconsideration of penalties. Sargent is entitled to attorney fees to the extent that he

prevailed on appeal. We reverse the Court of Appeals in part, affirm in part, and remand

to the trial court for reconsideration of the appropriate penalty.

                                           FACTS

       This case stems from a July 28, 2009 confrontation between Sargent and off-duty

SPD Officer Waters in a West Seattle alleyway. The parties dispute the facts. Sargent

contends that he parked his car in an alleyway to make a commercial stop. While he was

inside picking up laundry, Officer Waters drove up the alleyway and became irate when

he could not locate the owner of the parked car blocking his way. Sargent states that

Waters proceeded to pound on the hood of his car, punch off his passenger side mirror,

and eventually draw his weapon, without identifying himself as an SPD officer. Waters

contends he did identify himself as a police officer and that Sargent instigated the

confrontation by pinning Waters up against a wall with his car and hitting him with a

baseball bat.




                                               2
No. 87417-4


       Sargent was arrested for assault for swinging his bat at Officer Waters and spent

the night in jail. Because Sargent was not released, the SPD referred the case to, the King

County Prosecuting Attorney's Office (KCPA) as a "rush file." See CrR 3.2.1 (requiring

a judicial determination of probable cause within 48 hours after arrest). On August 6,

2009, the KCPA declined to file charges and referred the case back to SPD for follow-up

investigation.

       Sargent submitted PRA requests for information related to the confrontation,

hoping to mount a civil rights challenge. His first request on August 31, 2009 sought

records of the incident report and the name and badge number of the SPD officer.

Sargent supplemented his initial request on September 1 by adding a request for copies of

the 911 tapes and the computer aided dispatch (CAD) log related to the incident. In

letters dated September 4 and September 9, 2009, the SPD denied Sargent's PRA

requests, citing the RCW 42.56.240 exemption for effective law enforcement. Sargent

appealed the denial through the SPD internal process, but the SPD agreed to disclose only

the name of the SPD officer.

       Meanwhile, by October 23, 2009, the SPD had conducted its final witness

interview and in January 2010, referred the matter to the Seattle City Attorney for

charges. The city attorney declined to prosecute Sargent and the criminal investigation

was closed.

       On February 5, 2010, Sargent renewed his original PRA request and added a

request for written and recorded communications regarding a pending internal SPD




                                              3
No. 87417-4


disciplinary investigation of Officer Waters. On March 10, 2010, the SPD released its

first production of responsive documents. This initial production included the 911 tapes

and CAD log from the incident, with all witness names redacted. The SPD withheld their

internal investigation file, citing the effective law enforcement exemption. Sargent

contacted the SPD about his outstanding requests and the SPD produced a second batch

of responsive documents on April 5. This production included written communications

and additional materials in the investigation file but redacted names and identification

information under the effective law enforcement exemption. Additionally, the SPD

withheld Sargent's nonconviction data and continued to withhold any information related

to the internal disciplinary investigation of Officer Waters. On April 21, Sargent

corresponded with the SPD, asking substantive questions about the documents remaining

in the SPD's possession. On April30, the SPD completed the internal investigation of

Officer Waters.

                               PROCEDURAL HISTORY

       Sargent filed a complaint for relief under the PRA on August 5, 2010 in King

County Superior Court. At a show cause hearing, the trial court ordered production of

unredacted requested information and assessed a $30,270 penalty against the SPD. The

trial court reasoned that once the case was first referred to the KCP A the effective law

enforcement exemption was no longer categorical. The court also found that the SPD

acted in bad faith when it continued to withhold information after the final witness

interview had been conducted. The court therefore awarded the maximum penalty of




                                              4
No. 87417-4


$100 per day after this point and the minimum penalty of $5 per day before this point

when the SPD still believed in good faith that the exemption applied categorically.

       The SPD appealed and the Court of Appeals reversed in substantial part. Sargent

v. Seattle Police Dep 't, 167 Wn. App. 1, 260 P.3d 1006 (2011). The Court of Appeals

held that the effective law enforcement exemption did not end when the case was referred

to the KCP A for filing or with the final witness interview but continued to apply

categorically until the case was referred for a second time to prosecutors and the

investigation was closed. I d. at 12-15. The court further held that the exemption applied

categorically to the internal disciplinary investigation of Officer Waters and hence the

SPD properly withheld those files as well. ld. at 21-22. Although the nondisclosure of

witness identities was not covered by the categorical exemption, the Court of Appeals

thought that the SPD may have reasonably relied on case law suggesting otherwise and

remanded to give the SPD an opportunity to justify its redaction. ld. at 18-19. The court

also held that the SPD properly withheld Sargent's nonconviction criminal history under

the CRPA. ld. at 20-21. Finally, the Court of Appeals reasoned that the trial court

abused its discretion in awarding a maximum penalty where there was no showing of bad

faith or gross negligence. ld. at 22-25. The court remanded for a redetermination of the

witness identification issue and reconsideration of the penalty.




                                              5
No. 87417-4


                                       ANALYSIS

       1. The PRA and the effective law enforcement exemption

          a. Standard of review

      Judicial review of agency denials ofPRA requests is de novo. RCW 42.56.550(3)

("Judicial review of all agency actions taken or challenged under RCW 42.56.030

through 42.56.520 shall be de novo."); Newman v. King County, 133 Wn.2d 565, 571,

947 P.2d 712 (1997).

       The PRA mandates broad public disclosure. RCW 42.56.030 ("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."); Newman, 133 Wn.2d at

570; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 130, 580 P.2d 246 (1978). The PRA

requirement of disclosure is broadly construed and its exemptions are narrowly construed

to implement this purpose. RCW 42.56.030; Cowles Pub! 'g Co. v. Spokane Police Dep 't,

139 Wn.2d 472, 476, 987 P.2d 620 (1999); Newman, 133 Wn.2d at 571. Disclosure is

therefore mandated unless the agency can demonstrate proper application of a statutory

exemption to the specific requested information; the agency bears the burden of proof.

Newman, 133 Wn.2d at 571 (stating that "the agency claiming the exemption bears the

burden of proving that the documents requested are within the scope of the claimed

exemption"); Hearst, 90 Wn.2d at 130 ("The statutory scheme establishes a positive duty

to disclose public records unless they fall within the specific exemptions.").




                                              6
No. 87417-4


          b. The PRA effective law enforcement exemption does not apply categorically
             to block production of the criminal investigation materials Sargent
             requested

      Sargent submitted two PRA requests to the SPD for information related to the

criminal investigation concerning his confrontation with Officer Waters. The SPD

denied Sargent's requests, reasoning that the PRA's exemption for effective law

enforcement categorically prevented disclosure of the information. The effective law

enforcement exemption to the PRA provides that the following information is exempt

from disclosure:

      Specific intelligence information and specific investigative records
      compiled by investigative, law enforcement, and penology agencies, and
      state agencies vested with the responsibility to discipline members of any
      profession, the nondisclosure of which is essential to effective law
      enforcement or for the protection of any person's right to privacy.

RCW 42.56.240(1).

      Like all exemptions to the PRA, this exemption is to be construed narrowly. This

policy of narrow construction is embedded in the PRA statute itself: "This chapter shall

be liberally construed and its exemptions narrowly construed to promote this public

policy [of disclosure] and to assure that the public interest will be fully protected." RCW

42.56.030. The PRA also instructs courts reviewing agency actions to "take into account

the policy of this chapter that free and open examination of public records is in the public

interest, even though such examination may cause inconvenience or embarrassment to

public officials or others." RCW 42.56.550(3).




                                              7
No. 87417-4


        Typically, the agency claiming exemption must prove that nondisclosure of the

particular requested documents is essential to effective law enforcement. However, this

court has held that the effective law enforcement exemption applies categorically in a

narrow set of circumstances. In this case, the SPD did not prove why the exemption

applied to each document Sargent requested, but instead contended that the exemption

applied categorically and automatically to block production of the entire investigative

file.

        We established the categorical application of the effective law enforcement

exemption in Newman. In Newman, a journalist submitted a PRA request for access to an

ongoing murder investigation file. 133 Wn.2d at 568-69. The law enforcement agency

denied Newman's request, claiming that nondisclosure of the entire file was essential to

effective law enforcement. I d. Although the court recognized that agencies typically

bear the burden to prove that nondisclosure of particular documents is essential to

effective law enforcement, the circumstances of the case justified categorical exclusion of

the entire file. Id. at 573-74. Specifically, because the crime was unsolved and

enforcement proceedings were still contemplated, the agency should not be required to

parse the relevance of individual documents. I d. at 57 4-7 5. In reaching this conclusion,

the court focused on two factors. Id. at 574; see Cowles, 139 Wn.2d at 477-78. First, the

police would have difficulty segregating sensitive and nonsensitive information where the

investigation was ongoing. Second, the law enforcement agency, rather than the court,

was the proper party to determine whether nondisclosure was essential. For these




                                              8
No. 87417-4


reasons, this court held that the requested information was categorically exempt from

disclosure.

       Two years later in Cowles, this court limited the categorical application

established in Newman. In Cowles, a reporter requested information related to the arrest

of an assistant city attorney for drunk driving and attempted assault. 139 Wn.2d at 474-

75. At the time of the PRA request, the police had already referred the case to the

prosecutor for filing. !d. The court reasoned that the exemption did not apply

categorically because the policies motivating Newman were absent. First, because the

suspect was lmown and the case was already referred to a prosecutor, there was no risk of

disclosing sensitive information that might interfere with apprehension of the suspect; the

agency could thus assess the relevance of individual documents. !d. at 4 77-78. Second,

the police were not "institutionally better suited" than courts to determine which

information was essential to law enforcement. !d. at 4 78-79. The court established a

bright line that "where the suspect has been arrested and the matter referred to the

prosecutor," nondisclosure is not categorical and automatic. !d. at 4 79-80. Instead, the

burden rests with the agency claiming exemption to prove the propriety of nondisclosure

to the trial court on a document-by-document basis. !d.

       This court recently reinforced Cowles' limitation of the Newman categorical

exemption in Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010). In that

case, a Seattle Times reporter submitted a PRA request for information related to the

investigation of a city of Lakewood shooting of four police officers. !d. at 585-86. The




                                              9
No. 87417-4


respondents claimed the documents were properly categorically withheld under the

effective law enforcement exemption. !d. at 592-93. Because the murder investigation

was closed and the suspect deceased, the court concluded that the case "is outside the

realm of Newman and is on point with Cowles." !d. at 594. The effective law

enforcement exemption did not apply categorically, but instead would depend on a

"record-by-record analysis, with the requested records subject to in camera review by the

court." !d.

       Like in Cowles and Serko, Sargent's request does not fall within the categorical

exemption created in Newman. The text of the PRA mandates narrow construction of its

exemptions. The categorical exemption of broad categories of information conflicts with

this policy. See Newman, 133 Wn.2d at 574 (quoting Progressive Animal Welfare Soc 'y

v. Univ. of Wash., 125 Wn.2d 243, 261, 884 P.2d 592 (1994) ("In general, the Public

Records Act does not allow withholding of records in their entirety.")). This is why the

categorical application created in Newman applies only to a small class of information,

the nondisclosure of which we are confident is always essential to effective law

enforcement: situations where police have not yet referred the matter to a prosecutor for a

charging decision and revelation to the defendant.

       Here, the SPD had concluded its investigation and referred Sargent's case to the

prosecutor for a charging decision. At that point, the prosecutor could have pressed

charges and disclosed the information to Sargent. The fact that the prosecutor declined to

file charges and requested the SPD to conduct further investigation is of no import.




                                             10
No. 87417-4


Cowles recognized that referral to prosecutors signals the police's conclusion of its

investigation and is a bright line for termination of the categorical exemption. The

categorical exemption adopted in Newman is court created; it is not provided for in the

PRA. Expanding the court-made rule to cases that have been referred for charges but

rejected by the prosecutor is a sweeping change that is not justified by the express

language of the exemption, nor by the public policy favoring disclosure and

accountability of government agencies to the public they serve.

       Additionally, neither of the policies motivating the court's decision in Newman is

present in this case. Unlike in Newman where there was an unidentified murderer on the

loose, here Sargent had been identified and taken into custody, the case was referred to

the prosecutor, and the prosecutor determined that there was not enough evidence to file

charges. These actions signaled that the case was solved and the SPD would no longer

have trouble segregating sensitive from nonsensitive information. Additionally, a court

would be in as good of a position as law enforcement to judge whether nondisclosure was

essential. The prosecutor's decision to refer the case back to the SPD for follow-up

investigation does not alter these facts. In sum, the policies underlying our decision in

Newman no longer apply and categorical application of the exemption is inappropriate.

       The test proposed by the SPD is also unworkable. The Court of Appeals and the

SPD admit that the categorical exemption was lost when the case was first referred to the

prosecutor. If Sargent had submitted his requests during this time frame, instead of a few

weeks later when the case had been referred back to the SPD for follow-up, the SPD




                                             11
No. 87417-4


would have been required to prove that nondisclosure of each individual record was )

essential to effective law enforcement. It is nonsensical to deny Sargent access to these

same documents based on the timing of his request. Cowles established a workable

bright-line test that provides notice to both parties and reasonably accommodates the

competing interests of public access and effective investigation, and we see no reason to

alter this balance.

       This is not to say that police cannot continue to protect investigations from

disclosure following referral to a prosecutor. Some of the information Sargent sought

may very well have been exempt. We simply hold that the SPD had the burden to parse

the individual documents and prove to the trial court why nondisclosure was essential to

effective law enforcement. See Cowles, 139 Wn.2d at 479 (recognizing the propriety of

in camera review of specific documents to determine whether the exemption applies).

The SPD made no such showing. Accordingly, we reverse the Court of Appeals and

reinstate the trial court opinion on this point.

           c. The PRA effective law enforcement exemption does not apply categorically
              to block production of the internal investigation materials Sargent requested

       When Sargent renewed his PRA request in February 2010, he added to his request

written and recorded communications regarding the SPD's internal disciplinary

investigation of Officer Waters following his confrontation with Sargent. The SPD

withheld the internal investigation information, arguing that the categorical exemption

established in Newman should extend to this class of information. We disagree.




                                                   12
No. 87417-4


       Internal investigation materials are "specific investigative records" subject to the

language of the effective law enforcement exemption. RCW 42.56.240(1); Cowles

Publ'g Co. v. State Patrol, 109 Wn.2d 712, 728-29, 748 P.2d 597 (1988). This court has

held that the effective law enforcement exemption applies to all investigations '"designed

to ferret out criminal activity or to shed light on some other allegation of malfeasance."'

Koenig v. Thurston County, 175 Wn.2d 837, 843, 287 P.3d 523 (2012) (quoting

Columbian Publ'g Co. v. City of Vancouver, 36 Wn. App. 25, 31, 671 P.2d 280 (1983)).

The internal investigation of police misconduct certainly aims to "shed light" on

"malfeasance" and so the SPD investigation of Officer Waters would be exempt if

nondisclosure was essential to effective law enforcement.

       In State Patrol, this court held that nondisclosure of internal investigation

materials was essential to effective law enforcement in that case. 109 Wn.2d at 729. The

court reasoned that Washington's effective law enforcement exemption has broader

application than the federal equivalent and as such "protects law enforcement agencies

and 'effective law enforcement' from destructive intrusion." !d. at 730-32. Because

"[ e]ffective law enforcement requires a workable reliable procedure for accepting and

investigating complaints against law enforcement officers," the court held that the

identities of witnesses and subjects of internal investigations were exempt from

disclosure. !d. at 729-33.

       But we have never held this exemption to apply categorically to internal

investigations and we decline to do so here. Far from categorically exempting the entire




                                              13
No. 87417-4


investigation file, in State Patrol, this court held "in light of the circumstances of [that]

case" only the names of investigation witnesses and subjects were exempt from

disclosure. I d. at 729-30, 733; see also Ames v. City of Fircrest, 71 Wn. App. 284, 295,

857 P.2d 1083 (1993) ("The plurality holding in Cowles is case specific and does not

establish a broad principle that all information in the records of any investigation

characterized as an internal investigation is automatically exempt."). Here, the SPD

refused to disclose the entire internal investigation file, even though Sargent already

lmew that Waters was the subject of the investigation and was seeking more than witness

names.

         Extension of the categorical effective law enforcement exemption to internal

agency investigations would also conflict with the central tenets of Newman. "The

investigative records exemption is designed to protect the integrity of law enforcement

investigations," and thus should only apply categorically when intimately related to that

law enforcement investigation. See Koenig, 175 Wn.2d at 843. The Newman court

determined only that the exemption should apply categorically to an "open active police

investigation file." 133 Wn.2d at 575. The internal investigation of Officer Waters does

not constitute an open active police investigation in the same sense. Although the

internal investigation of Officer Waters' conduct could have led to criminal charges, such

a criminal investigation would be conducted outside the parameters of the internal

investigation. The main purpose of the internal investigation is to reach an internal

disciplinary remedy for proved misconduct. The SPD could have segregated the




                                               14
No. 87417-4


information into sensitive and nonsensitive portions, and a court would have been able to

judge just as well as the police whether nondisclosure of the sensitive pieces was

essential to effective law enforcement or would merely present an "inconvenience or

embarrassment" to the SPD. See RCW 42.56.550(3); Cowles, 139 Wn.2d at 477-78;

Newman, 133 Wn.2d at 574.

       The plain language of the effective law enforcement exemption also supports our

holding that the exemption does not apply categorically to internal investigations. The

exemption separates "investigative, law enforcement, and penology agencies" from "state

agencies vested with the responsibility to discipline members of any profession" as two

categories of agencies that may compile information subject to the exemption. RCW

42.56.240(1). The Newman categorical exemption concerns the first category of

investigative agencies, whereas the internal investigation of Officer Waters falls into the

second category. The clear separation of these two types of agency documents and the

difference in function supports their separation for purposes of categorical application of

the exemption.

       Finally, in the context of a criminal investigation such as in Newman, the public

would be better served by keeping the requested information confidential so that the

police could finish their investigation and catch the perpetrator. However, the public

would be better served by disclosure of the internal investigation information because the

public has an interest in knowing about claimed misconduct at public agencies. In fact,

this is exactly the type of disclosure envisioned by the PRA's mandate for broad public




                                             15
No. 87417-4


access to information to "maintain control over the instruments that they have created."

RCW 42.56.030.

       As with the SPD criminal investigation material, we do not hold that the effective

law enforcement exemption can never prevent disclosure of internal investigation

materials. The statute clearly covers internal investigations, and this court has held

certain internal materials exempt from disclosure. We simply decline to extend the

categorical application of the exemption derived in Newman in the context of a criminal

investigation to this type of internal investigation material. Instead, when an agency

withholds internal investigation information citing the effective law enforcement

exemption, the burden will rest with the agency to prove that specific portions of the

internal file are essential to effective law enforcement.

       2. The Court of Appeals erred by remanding to the trial court for
          reconsideration of whether the effective law enforcement exemption
          allowed the SPD to withhold witness identities from production

       When the SPD eventually produced relevant documents to Sargent in March 2010,

it redacted all names of witnesses from those documents, citing RCW 42.56.240(2)

(exempting from disclosure witnesses of a crime "if disclosure would endanger any

person's life, physical safety, or property" or if the witness requests nondisclosure). The

SPD later argued before the trial court that the witness identities were exempt because

disclosure would have a chilling effect on other witnesses, thus impairing effective law

enforcement under RCW 42.56.240(1). The trial court held that the SPD failed to prove

that witnesses' lives, physical safety, or property were at risk or that any witness




                                              16
No. 87417-4


requested nondisclosure. The trial court therefore ordered the SPD to reproduce these

documents in unredacted form. The Court of Appeals reversed, reasoning that although

the SPD made no showing that RCW 42.56.240(2) applied, it may have reasonably relied

on case law suggesting that the RCW 42.56.240(1) exemption for effective law

enforcement would apply categorically to witness identities. Sargent, 167 Wn. App. at

16-18. The court therefore remanded to give the SPD an opportunity to argue why the

effective law enforcement exemption should apply to the witness identities at issue. I d. at

18. We reverse the Court of Appeals on this issue and reinstate the trial court's ruling.

       The PRA protects witness identities in two provisions. The effective law

enforcement exemption in RCW 42.56.240(1) can prevent disclosure due to the potential

chilling effect on other witnesses who may be discouraged from coming forward if they

know that their identity will be disclosed. Additionally, RCW 42.56.240(2) provides

separate protection by exempting witness identities where "disclosure would endanger

any person's life, physical safety, or property" or where the witness requests

nondisclosure.

       The burden is on the agency to establish that nondisclosure is in accordance with

one ofthese PRA exemptions. RCW 42.56.550(1) ("The burden of proof shall be on the

agency to establish that refusal to permit public inspection and copying is in accordance

with a statute that exempts or prohibits disclosure in whole or in part of specific

information or records."). The SPD had the burden to show that nondisclosure was

essential to effective law enforcement under RCW 42.56.240(1) or that disclosure would




                                             17
No. 87417-4


endanger a person's life, physical safety, or property, or that a witness had requested

nondisclosure under RCW 42.56.240(2).

       At the show cause hearing, the SPD clearly understood that it needed to come

forward with specific evidence of chilled witnesses or other evidence of impeded law

enforcement. The SPD acknowledged that after Sargent's February requests it "no longer

asserted the categorical exemption" but instead redacted witness names under the "central

effective law enforcement exemption which continues to exist after the case is not open

and active." Verbatim Report of Proceeding (VRP) at 12. But, as both the trial court and

Court of Appeals recognized, the SPD made no actual showing that redaction of witness

names was essential to effective law enforcement in this particular case. A general

contention of chilling future witnesses is not enough to exempt disclosure. A remand to

give the SPD another opportunity to make the showing required to trigger the exemption

is unwarranted.

       Even if the SPD did believe the exemption applied categorically, remand would

still be inappropriate. The SPD contends that remanding for additional fact- finding here

would follow long-standing precedent from this court. However, the cases SPD relies on

are distinguishable. In each case where remand was ordered, the trial court had not yet

addressed whether an exemption applied. O'Neill v. City of Shoreline, 170 Wn.2d 138,

154, 240 P .3d 1149 (20 10); Concerned Ratepayers Ass 'n v. Pub. Uti!. Dist. No. 1 of

Clark County, 138 Wn.2d 950, 964, 983 P.2d 635 (1999). For example, in Concerned

Ratepayers, the trial court determined a technical specifications document was not




                                              18
No. 87417-4


subject to disclosure under the PRA because a public agency's review, evaluation, and

reference to the document did not constitute "use" under the PRA. 138 Wn.2d at 957.

This court disagreed and held the document was a public record. I d. at 963. Although

the agency did not argue the document was exempt upon the initial disclosure request nor

directly argue the exemption before this court, we remanded for the trial court to make a

determination of whether the specifications were exempt as research data under former

RCW 42.17.31 0( 1)(h) (2005), recodified as RCW 42.56.21 0, as this determination was

not previously made. Id. at 958. Concerned Ratepayers differs from the present case

because here, the trial court did reach the question of whether the law enforcement

exemption applied.

       Similarly in 0 'Neill, this court remanded to the trial court to determine whether

the PRA was violated by nondisclosure of metadata from multiple e-mails. 170 Wn.2d cit

151. In 0 'Neill, the city provided the metadata from several of thee-mails, but did not

provide the metadata from one of thee-mails that was destroyed. Id. at 144. The

individual brought suit under the PRA, but the trial court dismissed the action. Id. The

Court of Appeals found that metadata must be disclosed under the PRA as a public

record, which we affirmed. Id. at 148. We remanded for the trial court to consider

whether the deletion of metadata violated the PRA, based upon the outcome of a

subsequent search of the hard drive. I d. at 151. In contrast, here the SPD plainly failed

to offer any evidence that disclosure ofwitness identities would endanger any of the




                                             19
No. 87417-4


witnesses. Remand is not appropriate where the trial court properly considered SPD's

arguments and SPD simply failed to meet its burden.

      3. The trial court abused its discretion by failing to consider all of the
         Yousoujian 2010 factors in its assignment of a penalty

      The PRA requires imposition of per diem penalties up to $100 per day whenever a

violation is found. RCW 42.56.550( 4). Assignment of a penalty within this range is

subject to the "discretion of the court." Id. Accordingly, we review for abuse of

discretion. Yousoujian v. Office of King County Exec., 152 Wn.2d 421, 430-31, 98 P.3d

463 (2004) (Yousoujian 2004). Discretion is abused where the decision is "manifestly

unreasonable" or based on "untenable" reasoning. Yousoujian v. Office of Ron Sims, 168

Wn.2d 444,458-59,229 P.3d 735 (2010) (Yousoujian 2010).

       In Yousoujian 2010, this court established a framework to guide trial courts'

determination of penalties within the range provided under the PRA. The court identified

seven mitigating factors and nine aggravating factors to aide assessment of agency

culpability. Id. at 460, 467-68. These mitigating factors may justify a decrease in the

penalty:

       (1) a lack of clarity in the PRA request; (2) the agency's prompt response or
       legitimate follow-up inquiry for clarification; (3) the agency's good faith,
       honest, timely, and strict compliance with all PRA procedural requirements
       and exceptions; (4) proper training and supervision of the agency's
       personnel; (5) the reasonableness of any explanation for noncompliance by
       the agency; (6) the helpfulness of the agency to the requestor; and (7) the
       existence of agency systems to track and retrieve public records.

Id. at 467 (footnotes and citations omitted). These aggravating factors may justify an

increase in the assigned penalty:



                                             20
No. 87417-4


      ( 1) a delayed response by the agency, especially in circumstances making
      time ofthe essence; (2) lack of strict compliance by the agency with all the
      PRA procedural requirements and exceptions; (3) lack of proper training
      and supervision ofthe agency's personnel; (4) unreasonableness of any
      explanation for noncompliance by the agency; (5) negligent, reckless,
      wanton, bad faith, or intentional noncompliance with the PRA by the
      agency; (6) agency dishonesty; (7) the public importance of the issue to
      which the request is related, where the importance was foreseeable to the
      agency; (8) any actual personal economic loss to the requestor resulting
      from the agency's misconduct, where the loss was foreseeable to the
      agency; and (9) a penalty amount necessary to deter future misconduct by
      the agency considering the size of the agency and the facts of the case.

!d. at 467-68 (footnotes and citations omitted). The court cautioned that no one factor is

controlling and sometimes multiple factors will not be relevant. !d. at 468.

       Here, the trial court failed to apply these factors even though we decided

Yousoufian 2010 almost five months before the show cause hearing. The trial court did

not mention Yousoufian 2010 or engage in any sort of balancing analysis, but instead

focused exclusively on whether the SPD acted in bad faith to calculate a penalty.

       Although bad faith is an important consideration under Yousoufian 2010, it cannot

be the only consideration. Yousoufian 2010 does cite bad faith, both as a historical basis

for awarding high penalties and as a newly established aggravating factor. 168 Wn.2d at

460, 468. But the Yousoufian 2010 court also explicitly warned that "a strict and singular

emphasis on good faith or bad faith is inadequate to fully consider a PRA penalty

determination." !d. at 460-61. Although not all factors may apply in every case, "no one

factor should control" and the trial court here abused its discretion by not conducting its

analysis within the Yousoufian 2010 framework. !d. at 468.




                                             21
No. 87417-4


       In this situation, remand is the appropriate remedy. The Court of Appeals ordered

remand in an almost identical situation in Zink v. City of Mesa, 162 Wn. App. 688, 256

P.3d 384 (2011). There, the decision in Yousoufian 2010 was issued during the pendency

of the appeal and the court remanded so the trial court could engage in the appropriate

analysis. 168 Wn.2d at 705-06. Further, in Sanders v. State, 169 Wn.2d 827, 859, 240

P.3d 120 (2010), this court recognized that remand is generally the appropriate remedy

but affirmed the trial court award in this particular instance because the trial court's

analysis "anticipated" the not-yet-issued Yousoufian 2010 analysis. Similarly, the

Yousoufian 2010 decision itself recognized that "the usual procedure is to remand to the

trial court for imposition of the appropriate penalty." 168 Wn.2d at 468. It was only due

to the "unique circumstances and procedural history" of the Yousozifian 2 010 case that

this court set the penalty amount itself. !d. at 468-69. Here the trial court did not

consider the multifactor framework even though the show cause hearing occurred well

after the issuance of the Yousoufian 2010 decision. We therefore remand for the trial

court to consider all mitigating and aggravating factors outlined in Yousoufian 2010.

       4. The SPD properly withheld Sargent's nonconviction records under the CRP A

       When the SPD produced a second batch of relevant documents to Sargent in April

2010, it withheld Sargent's nonconviction criminal history. The SPD did not

immediately explain this withholding. The trial court decision ordered release of some

nonconviction documents-Sargent's booking information. VRP at 26-27 ("I don't

know of anything in the law that forbids the release of booking information to the very




                                              22
No. 87417-4


person who was booked. And none has been cited to me."). The SPD later cited the

CRPA, chapter 10.97 RCW, as justifying its withholding the information. Sargent, 167

Wn. App. at 8 & n.l; Appellant's Opening Br. at 32-37. The Court of Appeals held that

the SPD properly withheld the records because the CRP A permitted disclosure only for

the purposes of challenging or correcting the information contained in the records and

Sargent made no such allegation. Sargent, 167 Wn. App. at 20-21. Sargent took issue

with this holding in his petition for review and his supplemental brief, arguing that this

court's decision in Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398,

259 P.3d 190 (2011) mandates disclosure. Pet. for Review at 17; Suppl. Br. ofPet'r

Sargent at 17-18.

         At the time of the show cause hearing, the CRPA provided that "[n]o person shall

be allowed to retain or mechanically reproduce any nonconviction data except for the

purpose of challenge or correction when the person who is the subject of the record

asserts the belief in writing that the information regarding such person is inaccurate or

incomplete." Former RCW 10.97.080 (2010). 1 "Nonconviction data," furthermore, is

defined as "all criminal history record information relating to an incident which has not

led to a conviction or other disposition adverse to the subject, and for which proceedings

are no longer actively pending." RCW 10.97.030(2). The CRPA by its terms clearly

prohibits reproduction of any nonconviction data unless the subject of the record is

requesting a copy in order to contest the accuracy or completeness of the documents.



1
    RCW 10.97.080 was amended to alter this provision. See LAWS OF 2012, ch. 125, § 3.


                                               23
No. 87417-4


      As the Court of Appeals explained, Sargent misinterprets our holding in

Bainbridge Island. The Bainbridge Island court held that when a party requests a mix of

data with both nonconviction and other information, the nonconviction data should be

redacted and the remainder produced. 172 Wn.2d at 421-24. But Sargent requested

materials, like his booking history documentation, that were composed exclusively of

nonconviction data, and he did not assert in writing any inaccuracies or oversights.

Therefore, the SPD properly withheld the documents in their entirety because the CRP A

prohibits disclosure. Accordingly, we affirm the Court of Appeals on this issue. 2

       5. Sargent's motion to modify the clerk's notation ruling is denied

       After the Court of Appeals issued its decision, Sargent filed two motions to

present additional evidence under RAP 9 .11. The Court of Appeals denied these

motions, and Sargent did not assign error to this issue in his petition for review submitted

to this court. When Sargent raised the issue for the first time in his supplemental brief

filed after we granted review, the SPD filed a motion to strike the portions of Sargent's

brief that dealt with the RAP 9.11 denial. This court granted SPD's motion to strike and

Sargent moved to modify this ruling. We passed consideration of Sargent's motion to

modify to the merits and considered the motion at the oral argument already scheduled

for this case. We now deny Sargent's motion to modify.

       RAP 13.7 (b) provides, "If the Supreme Court accepts review of a Court of

Appeals decision, the Supreme Court will review only the questions raised in the ...

2
  Notably, the CRP A has since been amended to allow the subject of the record to obtain a copy
of their nonconviction data on file. LAWS OF 2012, ch. 125, § 3. If Sargent still desires this
information, the CRP A would no longer block his request.

                                               24
No. 87417-4


petition for review and the answer." Sargent did not assign error to the Court of Appeals'

denial of his motions to present additional evidence in his petition for review. SPD's

motion to strike the portions of his supplemental brief that raised the issue for the first

time was properly granted, and we accordingly deny his motion to modify our ruling that

so held.

       6.   Sargent is entitled to attorney's fees to the extent that he prevailed on appeal

       Sargent requested attorney's fees on appeal at the Court of Appeals under RAP

18.1 and RCW 42.56.550(4). A request for fees on appeal made at the Court of Appeals

will be treated as a continuing request in this court. RAP 18.1. RCW 42.56.550(4)

mandates provision of "all costs, including reasonable attorney fees, incurred in

connection with such legal action" to the party who prevails against an agency in a PRA

claim. This language includes attorney's fees incurred on appeal and hence Sargent is

entitled to an award of attorney's fees to the extent that he prevailed here. The parties are

directed to submit an affidavit and any objections to this court for a determination of the

appropriate award. RAP 18.1(d), (e), (±). 3

                                        CONCLUSION

       We hold that the effective law enforcement exemption ceases to apply

categorically to investigative records once the case is first referred to a prosecutor for a

charging decision. We also hold that the SPD violated the PRA by withholding records


3
 The issue of whether Sargent's 2010 written and oral requests for clarification constituted new
PRA requests is of no consequence given our holding that the SPD was required to respond to
Sargent's formal PRA requests in the first instance. Sargent's requests for clarification in 2010
did not affect his right to disclosure, and we see no need to resolve this dispute.


                                                25
No. 87417-4


of an internal disciplinary investigation. The effective law enforcement exemption does

not apply categorically to this type of material. We further hold that the SPD had its

chance to demonstrate a proper reason for withholding witness identities at the show

cause hearing and remand is therefore inappropriate. Finally, we hold that the SPD

properly withheld Sargent's nonconviction data under the CRPA and that remand for

reconsideration of penalties in light of Yousoufian 2010 is necessary. Accordingly we

reverse in part, affirm in part, and remand to the trial court for reconsideration of

penalties. Sargent is entitled to attorney's fees to the extent that he prevailed on appeal.




                                              26
No. 87417-4




WE CONCUR:




              27
Sargent v. Seattle Police Department, No. 87417-4
Dissent by J.M. Johnson, J.




                                    No. 87417-4

         J.M. JOHNSON, J. (dissenting)-The majority's eroswn of the

effective law enforcement exemption to the Public Records Act (PRA), 1

chapter 42.56 RCW, threatens the efficacy of open and active criminal

investigations. Rather than focusing limited resources and manpower on

protecting the public, law enforcement must now divert efforts toward

justifying the exemption of sensitive records in ongoing investigations. This

flies in the face of Newman/ which explicated the PRA exemption in RCW

42.56.240(1) and expressly recognized that law enforcement agencies-not

courts-are best suited to decide which information could compromise an

investigation if released too early. Because the majority is most certainly

out of step with Newman's analysis of the PRA and Newman's progeny, I

dissent.



1
    RCW 42.56.240(1).
2
    Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997).
Sargent v. Seattle Police Department, No. 87417-4




       The majority's application of Newman undermines a common law

enforcement investigation procedure that is a necessary tool for the

enforcement of our criminal code.          When a criminal suspect is arrested

without a warrant, the charges must be filed with the prosecutor's office

within 48 hours.       See CrR 3 .2.1 (requiring a judicial determination of

probable cause within 48 hours after arrest, unless probable cause was

determined prior to arrest). This practice is known as "rush filing." In such

situations, the case is referred to prosecutors who may prosecute or initially

decline to prosecute while returning the case to law enforcement for further

investigation. See Clerk's Papers (CP) at 141-42.

       The main issue before us is whether the investigative records

exemption to the PRA permanently expires when the case is first referred to

a prosecutor or if the exemption resumes in the event that the prosecutor

requests more investigation. The majority holds that even where the initial

investigation must occur within 48 hours, the categorical exemption for open

and active investigations expires once a case is referred to a prosecutor for a

charging decision. The majority applies this rule even where, as here, the

prosecutor sends the case back to law enforcement for further investigation




                                              2
Sargent v. Seattle Police Department, No. 87417-4




before an informed charging decision can be made. This hinders the use of

one effective law enforcement procedure.

       It is arbitrary to draw the line at the first referral to the prosecutor

when the substance of the investigation cannot possibly be done within 48

hours. It is far more sensible to draw the line at the end of the executive

branch's involvement with the case, when the investigation is truly closed.

See Cowles Publ'g Co. v. Spokane Police Dep't, 139 Wn.2d 472, 483-84,

987 P.2d 620 (1999) (Talmadge, J., concurring). That is likely what the

legislature intended.

       I would hold that Newman's categorical investigative records

exemption to the PRA does not permanently expire once the case is first

referred to a prosecutor. Rather, the exemption may renew in the event that

the prosecutor requests further investigation from law enforcement.        The

Seattle Police Department (SPD) did not violate the PRA by withholding

records of an investigation referred to a prosecutor's office for an immediate

charging decision because the exemption was renewed when the prosecutor

requested additional investigation.            I would further hold that the

investigative records exemption to the PRA applies to law enforcement

internal disciplinary investigations. The majority's holdings are based on

                                              3
Sargent v. Seattle Police Department, No. 87417-4




improperly narrow readings of Newman and Cowles.               Limiting the

categorical exemption in such a way fails to account for the necessities of

effective law enforcement practices.

                                         ANALYSIS

A.     Newman's Categorical Investigative Records Exemption Under RCW
       42.56.240(1) May Renew in the Event That the Prosecutor Requests
       Further Investigation

       Pursuant to RCW 42.56.240(1), certain public records are exempt

from production when it would hinder effective law enforcement or

encroach on privacy:

             The following investigative, law enforcement, and crime
       victim information is exempt from public inspection and
       copying under this chapter:

              ( 1) Specific intelligence information and specific
       investigative records compiled by investigative, law
       enforcement, and penology agencies, and state agencies vested
       with the responsibility to discipline members of any profession,
       the nondisclosure of which is essential to effective law
       enforcement or for the protection of any person's right to
       pnvacy.

       In Newman, 133 Wn.2d 565, this court considered whether documents

within an open and active criminal investigation file are categorically

exempt from production under the PRA as essential to effective law

enforcement. Newman involved a journalist's public records requests for


                                              4
Sargent v. Seattle Police Department, No. 87417-4




files in the ongoing police investigation into the 1969 murder of civil rights

leader Edwin Pratt. ld. at 568. We held that

       the broad language of the statutory exemption requires the
       nondisclosure of information compiled by law enforcement and
       contained in an open and active police investigation file
       because it is essential for effective law enforcement. The
       language of the statute provides for a categorical exemption for
       all records and information in these files.

ld. at 574. We emphasized the necessity of a categorical exemption because

"[r]equiring a law enforcement agency to segregate documents before a case

is solved could result in the disclosure of sensitive information." ld. We

noted that "[t]his exemption allows the law enforcement agency, not the

courts, to determine what information, if any, is essential to solve a case."

I d.

       Today's majority holds that under the limitations of Newman imposed

by Cowles, Newman's broad categorical exemption must end when police

first refer an investigation to a prosecutor for a charging decision. This

unnecessarily rigid reading of Cowles fails to account for the realities of law

enforcement investigations and will most certainly operate to harm sensitive

investigations. These costs will be imposed without commensurate benefits

to government accountability. I am not advocating for a rule under which

the records are forever shielded from public scrutiny; such a rule is
                                              5
Sargent v. Seattle Police Department, No. 87417-4




unsupported by language in the PRA. It is not a matter of if the records may

be disclosed to the public, but when.

       In Cowles, a newspaper publisher brought suit to compel production

of a police incident report and booking photograph after a suspect had been

arrested and the case was referred to a prosecutor for a charging decision.

We distinguished the facts from Newman on the basis that the investigation

in Cowles was no longer open and active. Cowles, 139 Wn.2d at 477-78.

We noted that when a suspect is arrested and the case is referred to a

prosecutor for a charging decision, "the risk of inadvertently disclosing

sensitive information that might impede apprehension of the perpetrator no

longer exists." !d. We ultimately held that "in cases where the suspect has

been arrested and the matter referred to the prosecutor, any potential danger

to effective law enforcement is not such as to warrant categorical

nondisclosure of all records in the police investigative file." !d. at 479.

After referral, the exemption must be justified on a case-by-case basis. !d. at

479-80.

       This case, which involved "rush filing" and a request to · law

enforcement for further investigation, is distinguishable from Cowles in

which we held that Newman's categorical exemption expires when a suspect

                                               6
Sargent v. Seattle Police Department, No. 87417-4




is arrested and the case is referred to the prosecutor. Cowles, 139 Wn.2d at

479.    In Cowles, the subject of the PRA request was arrested and the

Spokane Police Department referred the case to the prosecutor the same day,

requesting that charges be filed. Id. at 474-75. The investigation was no

longer open and active, as the case had been referred to the prosecutor for a

final charging decision. No further investigation was required.

       Here, the case was referred to prosecutors twice. The investigation

remained open and active after first referral to the prosecutor. Given the

complicated set of circumstances surrounding this case, law enforcement

could not possibly visit the location of the incident, interview all the

witnesses, and take statements from both parties within a 48 hour period.

Further investigation was necessary. The case was referred to prosecutors a

second time after a thorough investigation, at which time prosecutors

declined to file charges. Under this set of facts, it would be contrary to

Newman and Cowles to hold that the categorical statutory exemption for ·

information essential to effective law enforcement, RCW 42.56.240(1 ),

expires upon the initial referral to prosecutors.

       The concurring opinion in Cowles foresaw the need for the

progression in our case law that we face today:

                                               7
Sargent v. Seattle Police Department, No. 87417-4




       [S]imply submitting an investigation to a prosecutor for a
       charging decision does not always end the investigation. The
       prosecuting authority, whether a city attorney's office or a
       county prosecuting attorney's office, must then decide whether
       there is a sufficient basis to file criminal charges. If the
       prosecuting authority determines there is an insufficient factual
       or legal basis to file charges, the case is clearly neither solved
       nor closed. . . . At that point, further investigation is required
       and the whole purpose for the exemption discussed in Newman
       applies.

139 Wn.2d at 484 (Talmadge, J., concurring).              Justice Talmadge's

concurrence presciently warned the court that the controversy before us

could one day arise.       Nonetheless, the facts in Cowles were sufficiently

distinct from the concerns raised by Justice Talmadge to warrant leaving the

issue open for another day.        That day has come, and unfortunately, the

majority opinion has failed to recognize Cowles' need to protect "effective

law enforcement" procedures.

       As Justice Talmadge pointed out in his Cowles concurrence, "[t]he

appropriate line of demarcation for determining when a case is closed or

solved is the point at which the executive branch of government has

essentially concluded its involvement with the case."        Id. at 483-84.   I

emphatically agree.      Any other reading of Newman and Cowles fails to

account for the gap created between the two cases. Not all law enforcement

practices fit neatly in one category or the other; accordingly, Newman and its

                                              8
Sargent v. Seattle Police Department, No. 87417-4




progeny must be read flexibly to account for varying circumstances arising

from law enforcement investigatory practices.

       Furthermore, holding that the exemption must exp1re upon first

referral to a prosecutor's office would lead to perverse and potentially

devastating consequences.        Under such a scenario, a criminal could be

arrested and released, then submit a PRA request in order to gather

information for use in destroying evidence or coercing witnesses.             This

certainly would not support the balance between open government and

upholding the integrity of police investigations struck by the PRA and our

case law.

       As Justice Talmadge noted in his Cowles concurrence:

             The better point at which to say the case is "closed" is
       when the prosecuting authority has determined to file charges,
       as our earlier cases indicate. At that time, the case is essentially
       solved or closed from the perspective of the executive branch-
       the law enforcement agencies and the prosecuting authorities.
       The case is then within the province of the judicial branch of
       government, and it is no longer appropriate for the statutory
       exemption to apply. The broad policy of public disclosure ...
       must then control.

Cowles, 139 Wn.2d at 484-85. I would hold that it is essential to effective

law enforcement that investigative records remain categorically exempt in

this limited circumstance where the case has been declined for prosecution,

                                              9
Sargent v. Seattle Police Department, No. 87417-4




the investigation is open and active, and enforcement proceedings are

contemplated when the PRA request is received.           The Court of Appeals

properly rejected Evan Sargent's argument that SPD's "rush filing" with the

King County prosecuting attorney tenninated the criminal investigation for

the purposes of the "effective law enforcement" exemption of RCW

42.56.240(1 ).

B.     Newman's Categorical Investigative Records Exemption Applies to
       Open and Active Internal Disciplinary Investigations

       On February 5, 2010, Sargent made his only request for the internal

disciplinary investigation file of Officer Waters. CP at 41-42. The files

were withheld as exempt and the investigation remained open and active

until April 30, 2010.       CP at 145.      The trial court did not require the

production of the internal disciplinary file.       CP at 365.   The Court of

Appeals affirmed, recognizing that Newman's "reasoning applies equally to

disciplinary investigations." Sargent v. Seattle Police Dep 't, 167 Wn. App.

1, 22, 260 P.3d 1006 (2011).

       I agree. In Koenig v. Thurston County, 175 Wn.2d 837, 843, 287 P.3d

523 (2012) (quoting Columbian Publ'g Co. v. City of Vancouver, 36 Wn.

App. 25, 31, 671 P.2d 280 (1983)), we explained that to fall under the

Newman exemption, "[t]he investigation must be 'one designed to ferret out
                                              10
Sargent v. Seattle Police Department, No. 87417-4




criminal activity or to shed light on some other allegation of malfeasance."'

Internal disciplinary investigations into police misconduct are most certainly

designed to accomplish these goals. The Newman exemption for open and

active investigations should apply to internal disciplinary investigations such

as this one. Because Sargent never resubmitted a PRA request after the

investigation was closed on April 30, the SPD was under no obligation to

produce the internal disciplinary investigative records regarding Officer

Waters.

                                        CONCLUSION


       I would affirm the Court of Appeals' holding that the SPD did not

violate the PRA by withholding records of a criminal investigation referred

to a prosecutor's office for a potential "rush filing" charging decision, but

returned by the prosecutor for more investigation before filing. Investigative

records should be categorically exempt from production where the case has

been declined for prosecution, the investigation is open and active, and

enforcement proceedings are contemplated when the request is received. I

would further affirm the Court of Appeals' holding that RCW 42.56.240, the

investigative records exemption to the PRA, applies to law enforcement

internal disciplinary investigations. Newman, as limited by Cowles, strikes a

                                              11
Sargent v. Seattle Police Department, No. 87417-4




balance between promoting government accountability and furthering

sensitive law enforcement investigations.           I fear that today's majority

unsettles this balance in such a way that puts the public at risk through

compromised law enforcement investigations.




                                              12
Sargent v. Seattle Police Department, No. 87417-4




                                              13
