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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MICHAEL T. HANKINS and SINCERE

HANKINS, husband and wife, and MICHAEL

WARD, SR. and KAREN E. WARD, husband

and wife,

Plaintiffs,

v.

CITY OF TACOMA, a municipal corporation,

TACOMA POLICE DEPARTMENT, and

Tacoma Police Officers ROBERT BAKER,

JASON BROOKS, and BRIAN S.

GARRISON,

Defendants.

Case No. C06-5099 FDB

ORDER GRANTING MOTION TO

COMPEL PRODUCTION OF

REDACTED DOCUMENTS AND

DENYING REQUEST FOR

PRODUCTION OF MEDICAL

RECORDS

This matter comes before the Court on Plaintiffs’ Motion to Compel Redacted and Missing

Documents. After having reviewed all materials submitted by the parties and relied upon for

authority, the Court is fully informed and hereby grants the motion to compel in the following

manner.

INTRODUCTION AND BACKGROUND

Plaintiffs’ lawsuit alleges that they were assaulted and excessive force used against them by

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26 ORDER - 2

Tacoma police officers when they were falsely arrested and maliciously prosecuted. The Plaintiffs

claim that the defendant officers violated their federal civil rights and have asserted claims against the

officers pursuant to 42 U.S.C. § 1983 and state law claims. Claims are asserted against the City of

Tacoma under 42 U.S.C. § 1983 and state tort law based on the training, supervision and retention

of the defendant officers.

Plaintiffs served defendant City of Tacoma with Plaintiffs’ First Requests for Production of

Documents requesting, among other things, “All I.I.S. investigation files and reports relating to all

incidents involving Officer Robert Baker.” The records at issue involve complaints made against the

individually-named defendant officers.

The City’s production contained some documents with “redactions” and other documents

withheld in their entirety. The Defendants, relying on RCW 10.97.060, assert that the redacted

information is confidential nonconviction data of persons arrested by the police department where

the person was not the individual instigating the complaint. The Defendants nonetheless state that

they “do not oppose the entry of a court order allowing production of these documents without the

redactions of non-conviction data.” With respect to the records withheld in there entirety, the City

states that these “records are confidential medical records of a third person wholly unrelated to this

instant litigation, and consequently, were withheld pursuant to RCW 70.02.020.” Again, Defendants

state they will “defer to the court’s wisdom on whether plaintiffs have articulated a sufficient

compelling basis to disclose the confidential medical information of a non-party.”

CRIMINAL RECORDS PRIVACY ACT, RCW 10.97

Washington's Criminal Records Privacy Act, RCW 10.97010, generally provides for the

“completeness, accuracy, confidentiality, and security of criminal history record informationAAAA”

RCW 10.97.080 of the act states: “No 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

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26 ORDER - 3

inaccurate or incomplete.” ‘Nonconviction data’ is 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). ‘Criminal history record

information’ is information contained in records collected by criminal justice agencies, other than

courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions,

indictments, informations, or other formal criminal charges, and any disposition arising therefrom,

including acquittals by reason of insanity, dismissals based on lack of competency, sentences,

correctional supervision, and release. RCW 10.97.030(1).

RCW 10.97.050(4) specifically controls the dissemination of nonconviction information:

“Criminal history record information which includes nonconviction data may be disseminated by a

criminal justice agency to implement a statute, executive order, or a court rule, decision, or order

which expressly refers to records of arrest, charges, or allegations of criminal conduct or other

nonconviction data and authorizes or directs that it be available or accessible for a specific purpose.”

In Barfield v. City of Seattle, 100 Wn2d 878, 676 P.2d 438 (1984) the Washington Supreme

Court held that police internal investigation files are not privileged from disclosure under the Public

Disclosure Act, RCW 42.17.310, or the limited privilege for communications to a public officer,

RCW 5.60.060(5). The court held that protective orders may be utilized to minimize any potential

harm resulting form disclosure. Protective orders enable trial courts to manage the discovery

process in a fashion that will implement the goal of full disclosure of relevant information and at the

same time afford the participants protection against harmful side effects. Id. at 886. See also, State

v. Jones, 96 Wn.App. 369, 979 P.2d 898 (1999).

Apparently, the parties to this litigation have already signed a confidentiality agreement. The

Court finds it appropriate to compel production of the redacted nonconviction data. The parties will

adhere to dictates of the confidentiality agreement in the use of this information.

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HEALTH CARE DISCLOSURE ACT, RCW 70.02

The Washington Health Care Disclosure Act, RCW 70.02 (HCDA) regulates disclosures and

access to health care information. Under the HCDA, absent limited exceptions, a health care

provider, an individual who assists a health care provider in the delivery of health care, or an agent

and employee of a health care provider may not disclose health care information about a patient to

any other person without the patient's written authorization. RCW 70.02.020, RCW 70.02.060. A

"health care provider" is defined as "a person who is licensed, certified, registered, or otherwise

authorized by the law of this state to provide health care in the ordinary course of business or

practice of a profession." RCW 70.02.010(7). "Health care" is "any care, service, or procedure

provided by a health care provider: (a) to diagnose, treat, or maintain a patient's physical or mental

condition; or (b) that affects the structure or any function of the human body. RCW 70.02.010(4). 

"Health care information" is any information, whether oral or recorded in any form or medium, that

identifies or can readily be associated with the identity of a patient and directly relates to the patient's

health care. RCW 70.02.010(6).

It is not evident from the record whether the City of Tacoma Police Department is a “health

care provider” within the terms of the legislation. However, the HCDA also provides that all state or

local agencies obtaining patient health care information shall adopt rules establishing record security

policies consistent with the HCDA. 

RCW 70.02.060 authorizes providers to deliver medical records to third parties who comply

with its provisions. The primary requirement is that the third party must obtain compulsory process

and give notice to the patient in time for them to seek a protective order from the court. RCW

70.02.060(1). Otherwise, the provider must not turn over the records. RCW 70.02.060(2).

The Defendants privilege log indicates that the non-disclosed records consist of patient

medical records. These records are subject to the HCDA and are not subject to disclosure without

patient authorization.

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CONCLUSION

The Court having reviewed the pleadings and the remaining record, and for the reasons set

forth above,

IT IS HEREBY ORDERED:

(1) Plaintiffs’ Motion to Compel Redacted and Missing Documents [Dkt. #25] is

GRANTED IN PART:

(2) Defendant must produce the documents subject to the requests for production

without the redaction of nonconviction data.

(3) Plaintiffs are not entitled to discovery of patient medical records.

DATED this 24th day of January, 2007.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

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