The threshold issue in the case was whether the Stephson report was a public record. Judge Morgan argued that the Stephson report was a court record, which should be exempt from disclosure. If, however, the Supreme Court determined that the report was a city record Judge Morgan argued that several exemptions to the Public Records Act should apply to bar disclosure. Specifically, he claimed Amy Stephson was acting as his attorney when investigating the workplace complaint. Judge Morgan argued the report should be exempted from disclosure by the work product, attorney-client privilege, and personal information exemptions to the Public Records Act.

The Supreme Court previously ordered the release of the Stephson report with an opinion to follow. Today’s opinion provides the rationale for releasing the document.

Justice Susan Owens, writing for a unanimous court, rejected all of Judge Morgan’s arguments and held the report was a public record and that no exemption would justify non-disclosure. First, the Court addressed whether the Stephson report was a public record, and held that the report was “prepared, owned, used, and retained by the City; thus it qualifies as a public record and is subject to disclosure under the PRA.”

The Court noted that the work product exemption applies to records that relate to “completed, existing, or reasonably anticipated litigation.” The exemption does not shield records created during the ordinary course of business. As the Stephson investigation was conducted as a result of the city’s antidiscrimination policy, rather than in anticipation of litigation, the work product exemption does not apply.

Next, the Court held that communications between Morgan and Stephson were not protected by attorney-client privilege. Stephson was hired as an independent investigator, and the purpose of her investigation was to comply with the city’s antidiscrimination policy. No attorney-client relationship developed between Stephson and Judge Morgan, thus the investigation and report were not  privileged. (The Court also wrote that an email Judge Morgan sent to the city attorney was not protected as Morgan waived the privilege when he forwarded the email to a third party.)

Finally, the Court held that the personal information exemption did not apply. This exemption only extends to matters concerning a person’s private life that would be highly offensive to a reasonable person and are of no legitimate concern to the public. The Court noted the public’s substantial interest in the disclosure of information related to the performance of an elected official.

In re PRP of Mattson, No. 81324-8 (briefs and argument). The question is whether the Department of Corrections may refuse to consider the community custody transition plan of a sex offender who has been found, after an evaluation, to meet the criteria for commitment as a sexually violent predator. Mattson argues his right to release to community under terms of the early release statute, while DOC says Mattson’s plan was properly denied under statute.

Morgan v. Federal Way, et al., No. 81556-9 (briefs and argument). The City of Federal Way hired attorney Amy Stephson to investigate a complaint of a hostile work environment at the municipal court. The News Tribune requested a copy of the report under the Public Records Act, and Judge Michael Morgan, the subject of the complaint, filed a petition to prevent its disclosure. He argued that it was protected by the work product and attorney-client privilege exemptions to the Act, and by a general “separation of powers” that prevents the Act from being applied to judicial documents. The Supreme Court has already ordered the release of the Stephson report. The opinion issued tomorrow will provide the rationale for releasing the document.

State v. Rivera-Santos, No. 81445-7 (briefs and argument). This case arises from an appeal to a Clark County Superior Court decision. The defendant was observed driving under the influence of alcohol in Clark County, and a police chase ensued that didn't end until Oregon officers stopped him in Portland. Rivera-Santos was convicted of a DUI in Oregon, and the question before the court is whether the defendant's constitutional right against double jeopardy prevents him from being convicted for the same crime in Washington state. The trial court believed it was double jeopardy, and dismissed the case, the superior court disagreed. The defendant appealed directly to the Supreme Court, asking for review as a matter of great public interest.

Supreme Court of Washington Podcast (RSS) - Court records & minors with guns.

The threshold issue in the case was whether the Stephson report was a public record. Judge Morgan argued that the Stephson report was a court record, which should be exempt from disclosure. If, however, the Supreme Court determined that the report was a city record—rather than belonging to the court—Judge Morgan argued that several exemptions to the Public Records Act should apply to bar disclosure. Specifically, he claimed Amy Stephson was acting as his attorney when investigating the workplace complaint, so the report should be covered by attorney-client privilege or the attorney work product privilege.

So how will the opinion read? My best guess is that the Supreme Court determined that the Stephson report was in the city’s possession, and was therefore a public record. Making this determination would allow the court to skirt the issue of whether court records should be disclosed. Having determined the report to be a public record, it wouldn’t difficult for the Supreme Court to dismiss the attorney-client claim. Judge Morgan did not hire Amy Stephson and did not want her to investigate. The report was ordered by the city, and the city retained it when the investigation concluded.

So, it’s likely we’ll see a ruling favoring the release of reports about official misconduct, but I doubt this will be a sweeping determination that internal court records are subject to the Public Records Act. (Note: The court record question is not dead. This is squarely at issue in Koenig.)

Congratulations to attorneys James Beck and Ramsey Ramerman on this win.

Two cases argued today before the Supreme Court of Washington present a significant question about public access to court records and could result in a major expansion of the state’s Public Records Act (chap. 42.56 RCW).

The Morgan case involves a complaint filed by an employee of the Federal Way Municipal Court alleging a hostile workplace environment. The City of Federal Way hired attorney Amy Stephson to investigate the allegation. Judge Michael Morgan was the focus of the investigation. The News Tribune filed a public record request for Stephson’s report of investigation. Federal Way determined that the report should be released, and Judge Morgan filed suit against the city, seeking to bar disclosure of the report. The News Tribune also intervened. In March 2008, a trial court determined that the document was subject to the Public Records Act, and could be released to The News Tribune.

In a separate case, David Koenig filed a request for records, including records related to the resignation of Federal Way Municipal Court Judge Colleen Hartl, and correspondence of Judge Morgan. The city determined that several court records were not disclosable, asserting that the municipal court is not subject to the Public Records Act. The King County Superior Court agreed, relying primarily on the case of Nast v. Michels, 107 Wn.2d 300 (1986).

The Public Records Act question in both Morgan and Koenig is whether courts fall under the Act’s broad mandate for disclosure of public records. Generally, a “public record” is a writing related to the conduct of government, which is prepared, owned, used, or retained by any state or local agency. In Nast, the Supreme Court held that courts are not “agencies” under the Public Records Act, and that court case files are not subject to disclosure under the PRA.

Judge Morgan argues that the Stephson report is a court record concerning a municipal court judge and is thereby not subject to the PRA. In the other case, Mr. Koenig argues that Nast applied in a limited fashion to case files, but does not exempt a court’s administrative records.

The Office of the Attorney General filed amicus curiae briefs in both cases. In Morgan, the Attorney General argued that the Stephson report falls under the PRA, and disputed Morgan’s claim that the report would be exempt from disclosure under attorney-client privilege or work product. In Koenig, the Attorney General took a more moderate approach, cautioning against a blanket rule on whether courts are “public agencies” under the PRA, and suggesting that the court should offer guidance for when administrative records might be available.

Another wild card in these cases: Justices Sanders and Madsen were both recused, with Judge Joel Penoyar and Judge Kevin Korsmo sitting in as Justices Pro Tem. Justice Sanders has been a consistent vote for open government, and Justice Madsen frequently rules for disclosure, though usually approaching public records cases contextually. I won’t venture a guess on the impact of the two pro tem justices.

The Supreme Court’s ruling in these cases will likely be the final word for some time, considering the fact that the Washington Legislature has not offered any significant clarification on issue in the twenty-two years since the Nast decision.

Video of the arguments after the jump.

John Schochet argued for Judge Morgan, James Beck argued for the News Tribune, and Ramsey Ramerman argued for the City of Federal Way. 

Koenig v. Federal Way

William John Crittenden argued for David Koenig, and Ramsey Ramerman argued for the City of Federal Way. 

In the morning session, starting at 9:00 a.m., the Court will hear:

State v. Bobenhouse, No. 81413-9. This case is on appeal from Division Three Court of Appeals, and originated in Asotin County. It concerns whether a person can be charged as an accomplice to a crime when the principle actors in the crime are children, and thus legally incapable of committing a crime. Bobenhouse also objects to the jury's failure to specify which act in a sequence of acts was the basis for the charges against him.

Bobenhouse was convicted of three counts of first degree child rape and two counts of first degree incest for raping his son and forcing his son and daughter to commit sexual acts with each other while they were between the ages of 4 and 8. He is appealing his convictions on the grounds that the children were not capable of either criminal rape or incest, being close in age and under 8 years old, and so he cannot be liable as an accomplice. The Court of Appeals upheld his convictions, stating that his culpability is based on "forcing innocent people...to engage in conduct that would constitute a crime if [he] engaged in the same conduct."

In re S. Richard Hicks, No. 200,606-0. This case is an appeal of a recommendation by the Washington State Bar Association to discipline Attorney Richard Hicks with a two-year suspension for misconduct. The misconduct included making an "inaccurate and incomplete" statement to the Bar about his commingling of client funds. The questions before the Court are whether Hicks was ethically obligated to reveal his handling of the funds, and whether the two-year suspension levied by the Bar was excessive.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

Morgan v. Federal Way, et al., No. 81556-9. This case arose when Judge Michael Morgan (Federal Way Municipal Court) filed a petition with the King County Superior Court to prevent the City of Federal Way from releasing an internal investigation report to The News Tribune. The issue before the court is whether such a report is exempt from the Public Records Act because it is attorney work product or protected by an attorney-client relationship.

The report was prepared by an attorney, Amy Stephson, hired by the city to investigate a complaint of a hostile work environment at the municipal court. The News Tribune requested a copy of the report under the Public Records Act, and Judge Morgan filed a petition to prevent its disclosure. He argued that it was protected by the work product and attorney-client privilege exemptions to the Act, and by a general "separation of powers" that prevents the Act from being applied to judicial documents. The Superior Court disagreed, finding that the Act was applicable because the report was commissioned by and in the possession of the City (a non-judicial entity), and that the report did not fall under any of the claimed exemptions.

Federal Way v. David Koenig, No. 82288-3. This case is a direct appeal from a King County Superior Court order finding that the Public Records Act does not apply to the Federal Way Municipal Court. The issue before the court is whether some or all court records are subject to the Public Records Act. 

David Koenig filed a number of public records requests with the Federal Way Municipal Court, including records related to the resignation of Judge Colleen Hart. The city attorney asked for a ruling that the Municipal Court is not subject to the Public Records Act. The Superior Court granted the motion, relying on Nast v. Michels. (107 Wn.2d 300) But the trial court judge acknowledged that the issue of the PRA"s applicability to court records is generally in doubt, and encouraged Koenig to appeal directly to the supreme court.