As The Seattle Times reports today, the Seattle Police Department is, in one respect, opening up its records. The department is now providing misconduct-investigation documents even in cases where an officer has been cleared. According to a court declaration by Assistant Chief Dick Reed, the department is miserable about doing so, but has no choice given a recent state Supreme Court ruling. But when the department is obligated to disclose those and other records is another matter, one a different court ruling this week took up. That ruling was not so friendly to the cause of open records.
Prosecutors declined to press charges, but the case blew up anyway. Sargent retained Mike McKay, the former U.S. attorney, to look into a possible civil-rights suit. McKay cited the Sargent case in calling for a civil-rights probe of SPD, a plea that pissed off the mayor's office.
Sargent also sued SPD for withholding records about the road-rage incident. The trial judge said the department had indeed failed to comply with the Public Records Act, and ordered a $100-a-day fine. But the appeals court, while saying that the department made some minor errors, largely reversed the trial court's ruling.
Monday's judgment declares SPD justified in claiming that it didn't have to turn over records because the case was still open--even though the King County Prosecutor's office by that time had declined to press charges. The prosecutor's office had sent the case back to SPD for further investigation, the ruling points out.
The appeals court further emphasizes that it's up to the police--and the police alone--to determine when a case is over. One can't simply say, as the trial court did, that a case is closed "with the final witness interview."
Pat Preston, the attorney in McKay's office who is handling the case, says the implications of this part of the judgment "could be big," in that it gives police tremendous discretion. So, he says, does another part of the ruling that says police can also withhold records on an open misconduct investigation.
After he was arrested, Sargent filed a complaint about Waters with the Office of Police Accountability, which launched an investigation into the officer's conduct. Preston says Waters made a possibly crucial statement to OPA. And the lawyer charges that SPD used the ongoing misconduct investigation as cover while the department stonewalled attempts to get that statement and other documents submitted to OPA. SPD spokesperson Sean Whitcomb denies it.
SPD did eventually close both the criminal and misconduct investigations. Even then, though, the department didn't release certain documents. SPD said Sargent didn't make a new request for them. Preston denies this, saying his office did so verbally and then through filing suit, making it obvious that Sargent still wanted the records.
But the appeals court accepted SPD's version of events, and ruled that "there is no standing request" under the Public Records Act. What this means is that you may have to ask again, and again, and again.
A lot of public citizens don't have the "wherewithal" to do this, Preston says. Kimberly Mills, spokesperson for the City Attorney's office, says that if he doesn't like the ruling, he can appeal. Preston says he's considering just that.