In Fisher Broadcasting v. Seattle, five Supreme Court justices held that the Seattle Police Department  violated the Public Records Act (PRA) when it denied  a KOMO TV reporter’s request for “a list of any and all digital in-car video/audio recordings that have been tagged for retention” by officers, including “officer’s name, badge number, date, time and location when the video was tagged for retention.”    The SPD denied the request because it was “unable to query the system in the way [the KOMO reporter] requested.”   However, the SPD later granted a similar request by another party and produced logs of retained dashboard documents in their original Microsoft SQL Server format.

The Supreme Court majority noted that the PRA does require the responding party to mine data from two distinct systems and create a new document.  However, when the responder has the capacity to produce a partially responsive record, it has an obligation to do so.  The PRA defines “public record” broadly to include  “existing data compilations from which information may be obtained” “regardless of physical form or characteristics.”  RCW 42.56.010(4), (3).    Merely because information is in a database designed for a different purpose does not exempt it from disclosure.

In contrast, exemptions from the PRA are construed narrowly.   The SPD relied on Washington’s privacy act, RCW 9.73.090 (1)(c), which exempts “sound and video recordings  . . . by a law enforcement agency . . . until final disposition of any criminal or civil litigation which arises from the event . . . recorded.”   The Supreme Court held that this exemption is limited to cases where the recordings relate to actual, pending litigation.  The exemption is “simply the means  to an end . . . to avoid tainting pending litigation.”

Justice McCloud wrote a separate concurrence, stating her view that RCW 9.73.090 (1)(c) is not a privacy exemption that trumps the PRA disclosure mandate at all.  Rather, it bars the law enforcement agency from making unilateral “agency” determinations to release sound and video recordings before the conclusion of litigation in which the recordings might become evidence.