# FlLE

IN THE SUPREME COURT OFTHE STATE OFWASHINGTON ANTHONY J. PREDISIK and CHRISTOPHERKATKE, Petitioners, 

### v. ) ) ) 

### ) ) ) ) SPOKANE SCHOOL DISTRICTNO. ) 81, ) Respondent. ) )



# __________________________ ) No. 90129-5

EnBanc

Filed 

### APR 02 2015

Yu, J.-This case involves two public school employees who are onpaid administrative leave while their employer investigates allegations ofmisconduct. We must decide ifpublic records thatreveal these investigations are occurringbut do not describe the allegations being investigated-implicate the employees' privacyrights under the Public Records Act (PRA), chapter42.56 RCW. We hold they do not. Because no exemption applies to withhold the records from public inspection, wereverse and remand with instructions to order the records at issue disclosed in their entirety without redaction.

### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5
FACTS AND PROCEDURAL HISTORY Anthony J. Predisik and Christopher Katke are longtime employees ofthe Spokane School DistrictNo. 81 (District). In late 2011 and early 2012, the District beganto investigate Predisik and Katke after individuals made separate, unrelated allegations against the two employees. The substance behindthose allegations is not in the record, but the District's investigations are apparently ongoing and entering their fourth year. The Districtplaced Predisik and Katke on administrative leave and has paid salaries to both employees while it investigates. Inthe spring of2012, two media outlets submittedpublic records requests to the District. One request soughtthe "administrative leave letter given to Anthony Predisik, a Shadle ParkHigh School counselor." Clerk's Papers at 50. The other request asked for "information on all district employees currently onpaid/non-paid administrative leave." 

### Id. at 331. The requests returned three public records relevant to this dispute. The first record is Predisik's "administrative leave letter," a short letter informing Predisikthat he has beenplaced on administrative leave "pending completion ofthe District's investigation into allegations ofinappropriate interactions with a former student." Ex. P-1. It also tells Predisikhe is banned from district property and from talking with students about the matter duringthe

2

### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 investigation. The letter does not describe the allegations in any further detail and does not name Predisik's accuser. The second and third records are spreadsheets that documentthe amount of leave pay Predisik and Katke had accumulated through April2012. Exs. P-2, P-3. The spreadsheets, one for each employee, contain columns for the employee's name, the date ofpay, the hours paid, the rate ofpay, and a position code. Id. The final column indicates the reason for leave, which is described generically for both Predisik and Katke as "[a]llegations currently under investigation."Id. Similar to the leave letter, the spreadsheets provide no further detail about the allegations or the accusers. Predisik and Katke separately sued the District to enjoin disclosure ofthe leave letter and spreadsheets, alleging each record is exempt under the "[p]ersonal information" and "investigative" record exemptions ofRCW42.56.230(3) and 42.56.240(1). The District opposed the injunction and argued the leave letter and spreadsheets should be disclosed. 1 

### The trial court consolidated the two cases, and the parties filed cross motions for summaryjudgment. Citing our opinion in BellevueJohn Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 189 P.3d 139 (2008), the trial court found that Predisik's and Katke's identities, butnot the

1The two media entities that requested the records elected not tojointhis action, butthe District adequately represents the public's interest in full disclosure. 3

### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 records themselves, were exempt from disclosure under RCW 42.56.230(3). The judge ordered all three records disclosed with Predisik's and Katke's names redacted. The Court ofAppeals affirmed. 

### Predisikv. Spokane Sch. Dist. No. 81, 179 Wn. App. 513,319 P.3d 801 (2014). We grantedreview to clarify when the PRA will recognize a right to privacy in the identity ofa public employee who is the subject ofan open investigationby his or herpublic employer. 

### Predisikv. Spokane Sch. Dist. No. 81, 180 Wn.2d 1021, 328 P.3d 903 (2014). ANALYSIS The PRArequires that agencies "shall make available for public inspection and copying all public records," subject only to a handful ofstatutory exemptions. RCW 42.56.070(1); 

### see also ProgressiveAnimal Welfare Soc 'y

### v. Univ. of Wash., 125 Wn.2d 243,260, 884 P.2d 592 (1994) 

### (PAWS II). The PRA ensures the sovereignty ofthe people and the accountability ofthe governmental agencies that

serve them by providing full access to information concerning the conduct of government. 

### PAWSII, 125 Wn.2d at 251. To effectuate that policy, we start with the presumption that all public records are subject to disclosure. Agencies can withhold a record only ifit falls within one ofthe PRA's specific, limited exemptions. RCW 42.56.070(1). These exemptions are narrow, and we apply them in favor ofpartial disclosure where possible since "the PRA'spurpose of



### 4Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 open government remains paramount." ResidentAction Council v. Seattle Hous. Auth., 177 Wn.2d 417,432,327 P.3d 600 (2013); see also RCW42.56.070(1) (requiring that agencies redact records only "[t]o the extentrequired to prevent an unreasonable invasion ofpersonal privacy interests protected by [the PRA]" and produce the remainder ofthe record). Similarly, the PRAreminds us "thatfree and open examination ofpublic records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others." RCW42.56.550(3). Predisik and Katke argue thattwo ofthe PRA's exemptions independently justify withholding the leave letter and spreadsheets from disclosure. First, the employees assert the records contain personal information, the disclosure ofwhich would violate their rights to privacy. RCW 42.56.230(3). Second, they argue the records constitute investigative records that are essential to law enforcement. RCW 42.56.240(1). We apply each exemption in turn. A. Personal information exemption Predisik and Katke rely principally onRCW 42.56.230(3), which exempts from disclosure "[p]ersonal information in f1les maintained for employees

... of any public agency to the extent that disclosure would violate their rightto privacy." Application ofthis exemption involves three separate questions: (1) whether the records contain personal information, (2) whether the employees have



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### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

a privacyinterest in thatpersonal information, and (3) whether disclosure ofthat personal informationwould violate theirright to privacy. 

### BellevueJohn Does, 164 Wn.2d at 210. The first question is not in dispute. The leave letter and spreadsheets, which identifyPredisik and Katke byname, contain "'personal information' [i.e., the employees' identities] becausetheyrelate to particular people."

### !d. at 211. The existence of"personal information" in a public record is necessaryto the exemption, but it is not sufficient alone to withhold the record. Employees must also demonstrate that theyhave a right to privacyinpersonal information contained in a record 

### and 

### if such a right exists, that disclosure would violate it. Thepersonal information at issue here is Predisik's and Katke's identities when they are contained in public records disclosing that the District is investigating allegations ofmisconduct. So we next must decide whetherthe PRA grants public employees underinvestigation a right to privacyintheir identities. The statute's text offers little guidance to answerthis question. Although the PRA expresslyprovides "the test for determining when the right to privacyis 

### violated[, it] does not explicitly identifywhen the right to privacy 

### exists." BainbridgeIslandPolice Guildv. City of Puyallup, 172 Wn.2d 398, 412-13, 259 P.3d 190 (2011) (footnote omitted) (citing

### BellevueJohn Does, 164 Wn.2d at 212). We previouslyusedprinciples oftort law to fill this definitional void and define

6Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 the contours ofthe PRA's privacyright. In Hearst Corp. v. Hoppe, 90 Wn.2d 123, 135, 580 P.2d 246 (1978), we concludedthatthe "right ofprivacy," as it is used in the PRA, means "what it meant at common law," and we adopted the definition in theRestatement (Second) o.f'Torts § 652D (1977) (§ 652D). Therefore, a person has a right to privacy under the PRA only in '"matter[s] concerning the private life."'Id. at 135 (quoting§ 652D). To explain howthat standard is applied inpractice, we lookedto theRestatement's summary ofthe right to privacy: "Every individual has some phases ofhis life and his activities and some facts about himselfthat he does not expose to the public eye, but keeps entirely to himselfor at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful orhumiliatingillnesses,mostintimatepersonal letters,most details ofa man's life in his home, and some ofhis pasthistory that he would rather forget." I

d. at 136 (quoting § 652D cmt. b, at 386). This comment "illustrates what nature ofj'acts are protected by this right to privacy," id. (emphasis added), and taken in context makes clearthatthe PRA will notprotect everything that an individual wouldpreferto keep private. The PRA's "rightto privacy" is narrower. Individuals have a privacy rightunder the PRA only in the types of"private" facts fairly comparable to those shown intheRestatement. Using the Restatement as a rubric, we conclude that the PRA does not recognize a right ofprivacy inthe mere fact that a public employer is investigating

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### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

an employee. In so holding, we distinguish the investigation itselffrom the employee's conduct giving rise to that investigation. This difference, though subtle, is very importantto the

### Restatement's privacy interest analysis. A public employer's investigation is certainly not a

### private matter: it arises exclusively from the employee's

### public employment. The investigation is simply an administrative process. Itis not akin to a '"family quarrel[]'" or a "'humiliating illness[,]"' nor does it touch onthe employee's "'life [at] home."'

### Id. (quoting§ 652D cmt. b, at 386). To the contrary, the investigation relates to a part ofthe employee's lifehis or herprofession-thatis freely exposed to the public. A public employer's investigation is an act ofthe government, not a closely heldprivate matter that gives rise to a privacy right underthe PRA. We again contrast the employer's investigation, in which there is no privacy interest, with the allegations the employer is investigating. We acknowledge that such allegations may encompass some "pasthistorythat [the employee] would rather forget" and could come within that example or others in the 

### Restatementthat would implicate a privacy right underthe PRA. Butthe mere fact there is an open investigation into allegations ofmisconduct is not, by itself: a reason to withhold a record from disclosure. Agencies and courts mustreview each responsive record and discern ti·om its four corners whether the record discloses factual allegations that are truly ofa private nature, using the

### Restatement as a guide. Though there is

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### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

an inherent degree offact-finding in this analysis, a record-specific inquiry is the only way to adhere to the PRA's mandate that exemptions be construed narrowly. RCW 42.56.030. Applying this rule, we conclude that neither the leave letternorthe spreadsheets implicate a privacy right under the PRA. Those records disclose only that the Districthas opened an investigation and placed Predisik and Katke on leave during its pendency; the records do not disclose the factual allegations underlying that investigation. From these three records, the public learns only matters related to Predisik's and Katke's status as public employees and nothing about their personal lives. Forthe reasons we explain above, this information does nottrigger a privacy interest under the PRA. Predisik and Katke argue our decision in

### BellevueJohn Does requires we find a privacy interest here. We held in that case thatteachers have a rightto privacy intheir identities in records related to unsubstantiated allegations, since in those instances "the fact ofthe allegation

... does not bear onthe teacher's performance or activities as a public servant." 164 Wn.2d at 215. But as we explained, the existence ofa privacy right underthe PRA depends on the types of facts disclosed and is not amenable to a bright-line rule. We do not find 

### BellevueJohn Does dispositive when appliedto the records in this case and the limited, public nature ofthe facts those records disclose.

9

### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Again, a public employer's investigation is a governmental act and a consequence ofemployment with the government. Unlike the records at issue in 

### BellevueJohn Does, the leave letter and spreadsheets do not disclose any salacious facts that one might consider a private matter. Indeed, the records contain no specific allegations ofmisconduct at all. Itmakes no difference ifthe allegations here are eventually substantiated because the records do not describe them. We do not read

### BellevueJohn Does to create a sweeping rule that exempts

an employee's identity from disclosure any time it is mentioned in a record with

sometangential relation to misconduct allegations. A rule that broad wouldjustify withholding, or at least redacting, nearly every record created during the course of the District's investigation. Even

### BellevueJohn Does recognizes the PRA entitles the public to "documents concerning the nature ofthe allegations and reports related to the investigation and its outcome." 

### Id. at 221. Because we hold that no right ofprivacy exists in the leave letter or spreadsheets, we need not decide ifdisclosure ofthose records would violate that right. 

### See RCW 42.56.050 (providing the test for determining when disclosure violates the right to privacy ifsuch a right exists). We observe, however, that the public has a legitimate concern in the identities ofpublic employees who are the subject ofinvestigations. The PRA is meantto engender the people'strust in their government. The recent unrest in Ferguson, Missouri, is an extreme example of

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### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 how that trust is eroded whenthe public suspects the government is withholding information to protect its own. 

### See, e.g., Tanzina Vega, Timothy Williams & Erik Eckholm, 

### Emotions Flare in MissouriAmidPolice Statements, N.Y. TIMES (Aug. 15, 2014), 

### available atwww.nytimes.com/2014/08/16/us/darren-wilson-identifiedas-officer-in-fatal-shooting-in-ferguson-missouri.html. But secrecy can breed suspicion in more subtle ways, too. For example, if

we accepted Predisik's and Katke's position, the public would never learn about an investigation unless and until the underlying allegations are substantiated at some point in the future. There wouldbe no opportunity for the public to discoverthe District's ongoingthree-year investigation, much less question the effectiveness of what some might consider an awfully long process. Government cannot be held accountable for actions it shields from the public's eye. Public employees are paid withpublic tax dollars and, by definition, are servants ofand accountable to the public. The people have a rightto know who theirpublic employees are andwhenthose employees are notperformingtheir duties. In sum, we hold there is no privacy right under the PRA in the mere fact that a public employer is investigating apublic employee or in the employee's use ofadministrative leave. Both are simply functions ofthe government. Without such a privacyright, RCW 42.56.230(3) does not apply to exempt the leave letter

or spreadsheets from disclosure.

11

### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 B. Investigative record exemption Predisik and Katke also argue that the investigative records exemption requires that the District withhold the three records. RCW 42.56.240(1). A record falling within this exemption must, among other requisites, "be essential to law enforcement or essential to the protection ofprivacy." 

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

### Cowles Publ'g Co. v. State Patrol, 109 Wn.2d 712, 728, 748 P.2d 597 (1988)). The three records here are neither. The leave letter and spreadsheets are not essential to law enforcement. Our decision in 

### Brouilletv. Cowles Publishing Co., 114 Wn.2d 788, 795, 791 P.2d 526 (1990), is dispositive. There we considered whether the superintendent ofpublic instruction (SPI), who actually wields disciplinary authority over teaching credentials, performed law enforcement functions. We concluded the SPI could not rely on the investigative records exemption to withhold records because "it does not enforce law," and we rejected the agency's "attemptto characterize its supervision ofits employees as law enforcement" activity under the exemption. 

### !d. at 795-96. The District has even less investigative and disciplinary authority than the SPI, and its records similarly are not exempted under RCW 42.56.240(1). Nor are the leave letter and spreadsheets essential to the protection of privacy. The PRA is consistent in its definition of"privacy," which is the same

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### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 definition we announced in 

### Hearst Corp. and applied above. RCW 42.56.050; LAWS OF 1987, ch. 403, § 1. As discussed in detail earlier, Predisik and Katke have no right to privacy in records disclosing only the fact that they are the subjects ofan open investigation. CONCLUSION Public employees have no privacy right in the fact that they are being investigated by their public employer. The investigation is merely a status oftheir public employment, not an intimate detail oftheir personal lives, and without such

a privacy right, RCW 42.56.230(3) and .240(1) are inapplicable. We reverse the Court ofAppeals and remand with instructions to orderthe records at issue disclosed in their entirety without redaction.

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### Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5

WE CONCUR:

;.-:...,

14Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)

No. 90129-5 FAIRHURST, J. (dissenting)-! dissent because Anthony J. Predisik and Christopher Katke (Employees) have a right to privacy in their identities. The Employees' righttoprivacyis violatediftherecords atissue are disclosed. However, such records can be redacted to protect the Employees' privacy interest. To reach a contrary result, the majority deviates from ourprecedent and creates a newrule. ANALYSIS Theprimaryissue in this case is whetherunderthe PublicRecords Act (PRA), chapter 42.56 RCW, the identities ofthe Employees are exempt from disclosure. Themajority'sholdingthattheEmployees' identities are notexemptfrom disclosure is contrary to our case law. The question presented is resolved by our settled jurisprudence. We have construed the PRA as "a strongly worded mandate for broad disclosure ofpublic records." 

### Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). The PRAprotects the public'srightto be informed ofagency decisions. 1Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting) RCW 42.56.030. To fully protect the public's interest, the PRA requires that its provisions be construed liberally and its exemptions be construed narrowly. 

### !d. Unless a record falls within a specific PRA exemption orother statutory exemption, the PRArequires state and local agencies to disclose all publicrecords uponrequest. RCW 42.56.070(1). If a portion of a record should be redacted or remain undisclosed, "an agency shall delete identifying details in a manner consistent with [the PRA] when it makes available orpublishes any public record." 

### !d. The agency mustjustify eachredaction in writing. 

### !d. The Employees argue that two ofthe PRA's exemptionsjustify withholding the records inthis case: (1)the personal information exemption, RCW42.56.230(3), and (2) the investigative records exemption, RCW 42.56.240(1). We disagree with the majority's holding regarding the personal information exemptionbutagree with the majority's analysis and decision regarding the investigative records exemption. 

### The PersonalInformation Exemption The PRAexempts from disclosure "[p]ersonal informationinfiles maintained for employees, appointees, or elected officials ofanypublic agencyto the extentthat disclosure would violate their right to privacy." RCW 42.56.230(3). To determine ifrecords constitute personal information exempt from disclosure, we use a threepartinquiry: (1) whetherthe allegations constitutepersonal information, (2) whether those claiming that the exemption applies have a right to privacy in their identities, 2Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting) 

### and (3) whether disclosure ofthe personal information would violate their right to privacy. 

### Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 209, 189 P.3d 139 (2008). It 

### is undisputed that the leave letter and the spreadsheets that identify the Employees by name constitute personal information. 

### See id. at 211 ("The teachers' identities are 'clearly personal information' because they relate to particular people."); majority at 6. However, personal information is exempt from disclosure only to the extent that disclosure would violate the individual's right to privacy. 

### BellevueJohn Does, 164 Wn.2d at 212. The right to privacy is intended to have the same meaning as it was given by this court in 

### Hearst. Id. Hearst, 90 Wn.2d at 135-36, defined the "right to privacy" by looking to the common law tort ofinvasion ofprivacy and adopted the definition of "invasion of privacy" set forth in the 

### Restatement (Second) ofTorts § 

### 652D (1977). According to the 

### Restatement, '"[o]ne who gives publicity to a matter concerning the private life ofanother is subject to liability to the other for invasion ofhis privacy, ifthe matterpublicized is ofakindthat (a) wouldbehighly offensive to a reasonable person and (b) is not oflegitimate concern to the public."' 

### Hearst, 90 Wn.2d at 135-36 (quoting RESTATEMENT§ 

### 652D).

3Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting) 

### A. The Employees Have a Right to Privacy in TheirIdentities 

### While the above definition describes when the right to privacy is violated, it does not define when the right to privacy exists. See BainbridgeIslandPolice Guild

v. City of Puyallup, 

### 172 Wn.2d 398, 412-13, 259 P.3d 190 (2011). We have stated thatthe rightto privacy exists '"inmatter[s] concerning the private life."' 1

### Bellevue John Does, 

### 164 Wn.2d at 212 (alteration in original) (internal quotation marks omitted) (quotingHearst, 

### 90 Wn.2d at 135). We have also notedthatthere is aright to privacyinunsubstantiated allegations. Morgan v. City of Federal Way, 

### 166 Wn.2d 747, 756, 213 P.3d 596 (2009) ("Unsubstantiated allegations are exempt from disclosure."). In Bellevue John Does 

### we found that if "a complaint regarding misconduct during the course ofpublic employment is substantiated or results in some sort of discipline, an employee does not have a right to privacy in the complaint." 164 Wn.2d at 215. However, "[a]n unsubstantiated or false accusation of sexual misconduct is not an action takenby an employee inthe course ofperformingpublic duties." !d. 

### In Bellevue John Does, 

### public school teachers sought to enjoin their respective school districts from releasing their names inresponse to apublicrecords request. !d. 

### at 205. The request was for all records relating to allegations ofsexual

1The Restatement summarizes the right to privacy in comment b to § 652D, and this comment is cited on page 7 ofthe majority opinion. 4Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fair hurst, J. (dissenting) 

### misconduct by teachers in the prior 10 years. 

### !d. at 206. We held that the teachers had a right to privacy in their identities and ordered that the records could be disclosed only ifthe teachers' names were redacted. 

### !d. at 215, 227. We noted that the unsubstantiated allegations ofsexual misconductthat neverresulted in any form of discipline were matters concerning the teachers' private lives and were not specific instances ofmisconduct committed while in the course ofemployment. 

### !d. at 215. Inourreasoning we notedthat "[t]he fact ofthe allegation, notthe underlying conduct, does notbearontheteacher'sperformance oractivities as apublic servant." 

### !d. Moreover, we stated that "[t]he mere fact ofthe allegation ofsexual misconduct toward a minor may hold the teacher up to hatred and ridicule in the community, without any evidence that such misconduct ever occurred." 

### !d. In Morgan, a post-Bellevue John Does decision, we held that the personal information exemption did not apply to the records at issue. Morgan, 166 Wn.2d at 276. InMorgan, thejudgearguedthatareportproducedbythe investigating attorney

was exempt from disclosure because it contained unsubstantiated allegations that

were highly offensive. 

### !d. The report alleged that thejudge created a hostile work environment by, among other things, angry outbursts and inappropriate genderbased comments. 

### !d. In our reasoning, we first addressed whether thejudge's right to privacy would be violated if the records were disclosed. We found that the allegations against the judge were not as offensive as allegations of sexual 

### 5Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting) 

### misconduct with a minor, like in Bellevue John Does, and would not be highly offensive if disclosed. Next, we stated that contrary to the judge's assertions, the allegations were not unsubstantiated. ld. The records at issue in Morgan evaluated the credibility ofeachperson who made an allegation and found thatthe allegations

were likely true. ld. We held that the judge did not have a right to privacy in the responsive records. Id. Here, the question 1s whether the Employees, who are the subject of unsubstantiated allegations ofmisconduct, have aright to privacy in their identities. The administrative leave letter informed that Predisik was placed on administrative leave "pending completion of the District's investigation into allegations of inappropriate interactions with a former student." Ex. P-1. The leave slips indicate that the Employees are on leave for "[a]llegations currently under investigation." Exs. P-2, P-3. The documents provided no further information about the allegations

or the accusers. Like Bellevue John Does and unlike Morgan, the allegations in the records are unsubstantiated and there is no evidence that the accusations resulted in any form of discipline. Because the allegations were unsubstantiated, they do not bear on the teachers' performance as public servants and do not informthepublic of specific instances ofmisconduct during the course ofemployment. Therefore, the Employees have a right to privacy in their identities.



### 6Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting) Themajority found thatbecausetherecords didnotdisclose "salacious facts," the records here are not comparable to those examined in 

### Bellevue John Does. Majority at 10. The majority setforth a newrule thatrequires "[a]gencies and courts [to] review each responsive record and discern from its four corners whether the record discloses factual allegations that are truly of a private nature." 

### !d. at 8. Applying this rule, the majority found that the records do not disclose private information aboutthe employeesbecausethe records related onlyto the Employees' status as public employees. 

### !d. at 9. The majority distinguished the "investigation itself from the employee's conduct giving rise to that investigation." 

### Id. at 8. According to the majority, the fact thatthe investigation is occurring is not a private matter because it relates to a part ofthe Employees' lives that are freely exposedto the public. 

### !d. In reaching its conclusion, the majority disregards the fact that in 

### Bellevue John Does we found that unsubstantiated allegations ofmisconduct are not actions taken by public employees during the course of performing public duties. 2 164 Wn.2d at 215. Therefore, a public employee's identitywhen disclosed inconnection with unsubstantiated allegations or evidence ofpending investigations is not related

2To support its reasoning, the majority seems to rely on principles from the dissent in Bellevue John Does. 164 Wn.2d at 234 (Madsen, J., dissenting) (noting that the teachers did not have a right to privacy because the allegations ofspecific instances ofmisconduct occurred while the employees were performing their public duties). 7Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting) to his or her status as a public employee. This principle was derived from past precedent such as 

### Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 725, 748 P.2d 597 (1988). In 

### Cowles, we noted that the right to privacy is not violated when

a complaint about a specific instance ofmisconduct is substantiated, but where an investigation is pending, disclosure would result in a more intrusive invasion of privacy. The principle was reiterated in 

### Morgan, where we noted that unsubstantiatedclaims ofmisconductare exemptfrom disclosure. 166 Wn.2dat756. B. 

### Disclosure of the Employees'Identities Would Violate TheirRight to Privacy Finding that the Employees have a right to privacy in their identities in connection with unsubstantiated claims ofmisconduct is notthe end ofthe analysis. We next must consider whether the Employees' right to privacy would be violated by disclosure. "A person's 'right to privacy'

... is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public." RCW 42.56.050. 1. 

### Highly Offensive While our cases do not define the term "highly offensive," we have addressed whetherthe disclosure ofcertainrecords would be highly offensive in several cases. In these cases we have noted that embarrassment alone is not sufficient for a record to be considered highly offensive. 

### Dawson v. 

### Daly, 120 Wn.2d 782, 797, 845 P.2d 8Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting) 

### 995 (1993). InBellevueJohn Does 

### we found that disclosingthe identities ofteachers accused of sexual misconduct is highly offensive. 164 Wn.2d at 216. Outside the context of sexual misconduct allegations, we have held that disclosure ofrecords that discuss employee performance but that do not discuss specific instances of misconduct, are presumed highly offensive. Dawson, 

### 120 Wn.2d at 797. However,

as noted above, in Morgan 

### we found that specific, substantiated allegations of inappropriate behavior and outbursts were not as offensive as allegations ofsexual misconduct. 166 Wn.2d at 756. Here, the allegations were ofinappropriate behavior with a former student. The spreadsheets also disclosed that both Employees were under investigation for allegations ofmisconduct. The records, like those in Dawson, 

### did not state specific instances of misconduct but instead disclosed vague allegations. Unlike the allegations in Morgan, 

### the records here did not include facts or credibility findings to substantiate the allegation of inappropriate behavior. As the Court of Appeals noted, unsubstantiated allegations ofmisconduct, otherthan sexual misconduct, can subject teachers to the same gossip and ridicule without actual evidence of wrongdoing. Predisik v. Spokane Sch. Dist. No. 81, 

### 179 Wn. App. 513, 520, 319 P.3d 801 (2014) (citing Bellevue John Does, 

### 164 Wn.2d at 220-21). Although the allegations against the Employees were not sexual misconduct with a minor, the disclosure of one's identity associated with vague allegations and evidence of 9Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting) pending investigations related to one's profession would be highly offensive to a reasonable person. 2. 

### LegitimatePublic Concern Since disclosure would be highly offensive, we must consider ifthere is a legitimate public concern in the identities ofthe Employees such that the records must be disclosed. The application ofthis exemption turns on whether the concern ofthe public is legitimate. 

### Dawson, 120 Wn.2d at 798. The term "legitimate" inthe context ofthe PRAmeans '"reasonable."'

### !d. Ifan allegation is unsubstantiated, the matter is not ofpublic concern. 

### Bellevue John Does, 164 Wn.2d at 221. Here, the public does not have a legitimate interest in the names ofteachers who are under investigation for unsubstantiated allegations. Whilethere is not a legitimate public concern inthe names oftheteachers, the public does have a legitimate concern in the leave slip and the spreadsheet. As the CourtofAppealsnoted, thepublichas aninterestin seeingthat agovernmentagency conducts itselffairly and uses funds responsibly. 

### Predisik, 179 Wn. App. at 520. In 

### Bellevue John Does, we found that the teachers' names could be redacted to protect their privacy interests and such redaction would not harm the public oversightofagency conduct. 164Wn.2dat 221-23 (notingthatthe identities ofthose accused of unsubstantiated allegations of misconduct does not aid in effective government oversight by the public). Furthermore, as the Court ofAppeals noted, 10Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fair hurst, J. (dissenting) the leave slip and spreadsheets are not highly offensive when the identifying informationis redacted. 

### Predisik, 179 Wn. App. at 520. Thereforetherecords should be disclosed but with the identities ofthe teachers redacted. The majority notes thatthere is a legitimate public interest in the identities of the Employees. Majority at 10. According to the majority, ifwe redact or withhold the records, the public would never find out about the investigation until the allegations were substantiated, and the public has a right to know about employees who are not performing their duties. Majority at 11. We generally agree. However,

we can uphold both the privacy interest ofthe Employees and the public's interest in overseeing government actions byredactingtherecords. There is no evidencethat theEmployeeswerenotperformingtheirduties. 

### SeeBellevueJohnDoes, 164Wn.2d at 217 ("'[T]he public as a rule has no legitimate interest in finding outthe names of people who have been falsely accused.'" (quoting 

### Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 129 Wn. App. 132, 155-57, 120 P.3d 616 (2005))). By redacting and releasing the documents, the public could learn of the ongoing investigation and question its effectiveness without violating the privacy of the Employees. 

### See majority at 11.

11Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fair hurst, J. (dissenting) 3. 

### Redaction is Sufficient to Protect the Employees 'PrivacyInterest According to the Employees, the records in their entirety are exempt under the personal information exemption, RCW 42.56.230(3). The Employees contend that redaction is not sufficient to protect their privacy interest in their identities because the public records request specifically asked for records relatedto Predisik, and therefore the disclosure ofrecords in response to that request necessarily links his identity to the material. We have rejected similar arguments. 

### See Koenig v. City of Des Moines, 158 Wn.2d 173, 183-84, 142P.3d 162 (2006). In

### Koenigweheldthatthereis no statutory language or case lawto supportthe argumentthatwe should lookbeyondthe record at issue to determine whether it is exempt from disclosure. 

### Id. at 183. In

### Koenig we created a rule that agencies apply exemptions based only on the information the record discloses onits face withoutregardfortherequest. Thisrule creates auniform disclosure system because it ensures that disclosure will not depend on how the request is made, but on the individual record at issue. 

### Id. CONCLUSION I would affirm the Court ofAppeals. The Employees who are the subjects of unsubstantiated allegations and pending investigations have a right to privacy in their identities. This right is violated ifthe records at issue are disclosed in their entirety to the public. However, ifthe identities ofthe Employees are redacted from 12Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting) the records, the Employees will nothave arightto privacyinthe records. Therefore, the records should be redacted and released. Because the majority finds that the Employees do nothave arightto privacyintheiridentities andholdsthattherecords at issue be disclosed in their entirety, I respectfully dissent.

13Predisikv. Spokane Sch. Dist. No. 81, No. 90129-5 Fairhurst, J. (dissenting)



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