Richard Lee, App. v. City Of Seattle, Seattle Police Department, Res. ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RICHARD LEE, ) rs, C:t
) DIVISION ONE co JP"
—
Appellant, ) rn
) No. 75815-2-1 -xi
v. )
) aris =)›.—
CITY OF SEATTLE, SEATTLE POLICE) =r-
DEPARTMENT, COURTNEY LOVE ) dt.
Mtf)
COBAIN, and FRANCES BEAN ) OM.
=
COBAIN, )
) UNPUBLISHED OPINION
Respondents, )
)
and )
)
COURTNEY LOVE COBAIN and )
FRANCES BEAN COBAIN, )
)
Cross-Claimants, )
)
v. )
)
CITY OF SEATTLE, SEATTLE POLICE)
DEPARTMENT, )
)
Cross-Claim Defendants. ) FILED: May 14, 2018
)
DWYER, J. — Richard Lee appeals from the trial court's order granting
summary judgment in favor of the City of Seattle and the Seattle Police
Department(collectively the City). On appeal, Lee contends that the trial court
erred by concluding that the photographs and documents that he requested were
exempt from disclosure. Also at issue is the trial court's order granting summary
No. 75815-2-1/2
judgment in favor of cross-claimants Courtney Love Cobain and Frances Bean
Cobain (the Cobains) and permanently enjoining the City from disclosing,
disseminating, releasing, or distributing any death-scene photographs not
previously disclosed. We affirm the trial court's orders.
1
Kurt Cobain, the lead singer of-the band "Nirvana," was discovered dead
on April 8, 1994., The City investigated Mr. Cobain's death, took numerous
photographs of his body, and concluded that the cause of death was a self-
inflicted gunshot wound.
Richard Lee is a local conspiracy theorist who believes that Mr. Cobain
was murdered. Lee visited Mr. Cobain's residence on the day that his body was
discovered and subsequently began creating news and documentary material for
his public access television program. Lee aired his first broadcast concerning
Mr. Cobain's death five days after the discovery of his body. Since then, Lee has
devoted hundreds of hours to covering what he believes to be the murder of Mr.
Cobain. Lee has made numerous requests to the City for documents related to
the death of Mr. Cobain.
In 2014, the City asked cold-case Detective Michael Ciesynski to review
the investigative file on Mr. Cobain's death. Ciesynski located four undeveloped
rolls of film in the police file and subsequently had them developed.1 Most of
these photographs contained death-scene images of Mr. Cobain's body.
I Ciesynski stated in his declaration that it is not unusual to find undeveloped film in old
case files, particularly when the case did not lead to criminal charges.
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No. 75815-2-1/3
Following his review, Ciesynski concluded that the determination of suicide was
correct.
On March 20, 2014, Lee submitted a Public Records Act2(PRA) request,
seeking the entirety of the Cobain investigative file. The City provided two
installments of records to Lee. It first furnished him with 37 photographs from the
investigative file and later provided him with the remaining documents in the file.
The City also sent Lee an exemption log that explained which documents or
portions of documents the City had withheld from production and the reasons for
exemption or redaction.
Lee sued the City on March 31, 2014. That lawsuit was dismissed on
procedural grounds on July 31, 2015. That same day, Lee filed a new PRA
request for "ANY AND ALL DOCUMENTS RELATED TO the March, 2014 effort
to 'reopen' or 'examine'[]the Kurt D. Cobain death case, including of course,
ALL OF THE PHOTOGRAPHIC EVIDENCE in this case." The City responded
by providing Lee with the same documents that it had provided pursuant to the
March 20, 2014 request, as well as a copy of the exemption log.3
On April 15, 2016, the Cobains were granted intervention in this suit. The
City and the Cobains moved for summary judgment on the question of whether
the death-scene photographs should be disclosed. The City sought a ruling that
the death-scene images were exempt from disclosure pursuant to the PRA, RCW
42.56.240(1).4 The Cobains sought to permanently enjoin the City from releasing
2 Ch. 42.56 RCW.
3 On March 16, 2016, the City released five additional photographs that were taken in
June 2015 and placed in the investigative file in March 2016.
4 That statute exempts from public inspection:
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No. 75815-2-1/4
the death-scene images pursuant to their privacy rights under Washington
common law and the Fourteenth Amendment to the United States Constitution.
The trial court granted both motions. The trial court ruled that the
disclosure of the death-scene photographs would violate the Cobains'
substantive due process rights under the Fourteenth Amendment. The trial court
also ruled that the death-scene photographs were exempt under the PRA.5 The
trial court also granted the City's subsequent motion for summary judgment,
concluding that the other documents withheld or redacted by the City were
categorically exempt from disclosure. Lee appeals.
11
As a preliminary matter, it is prudent to discuss the import of the trial
court's due process holding.
A
Pursuant to the Rules of Appellate Procedure(RAP), an appellant must
designate in the notice of appeal the decision or part of decision that the party
wants reviewed. RAP 5.3(a)(3). A party's appellate briefing must include a
"separate concise statement of each error a party contends was made by the trial
court, together with the issues pertaining to the assignments of error," as well as
"argument in support of the issues presented for review, together with citations to
Specific intelligence information and specific investigative records complied by
investigative, law enforcement, and penology agencies, and state agencies
vested with the responsibility to discipline members of any profession, the
nondisclosure of which is essential to effective law enforcement or for the
protection of any person's right to privacy.
5 The trial court incorporated its oral ruling into its written orders.
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legal authority and references to relevant parts of the record." RAP 10.3(a)(4),
(6).
A party's failure to assign error to an issue, by itself, does not necessarily
result in our refusal to consider that issue. State v. Olson, 126 Wash. 2d 315, 320,
893 P.2d 629(1995). Indeed,"RAP 1.2(a) makes clear that technical violation of
the rules will not ordinarily bar appellate review, where justice is to be served by
such review... where the nature of the challenge is perfectly clear, and the
challenged finding is set forth in the appellate brief." Daughtry v. Jet Aeration
Co., 91 Wash. 2d 704, 710, 592 P.2d 631 (1979).
However,"a complete failure of the appellant to raise the issue in any way
at all—neither in the assignments of error, in the argument portion of the brief,
nor in the requested relief' may entirely preclude appellate court consideration of
the issue. Olson, 126 Wash. 2d at 320-21. Our Supreme Court has noted that this
narrow rule
makes perfect sense because in the situation where the issue is not
raised at all, the court is unable to properly consider the issue prior
to the hearing and is given no information on which to decide the
issue following the hearing. More importantly, the other party is
unable to present argument on the issue or otherwise respond and
thereby potentially suffers great prejudice.
Olson, 126 Wash. 2d at 321-22; see Am v. Martin, 154 Wash. 2d 477, 487, 114 P.3d
637(2005)(appellant's "incidental allusion" to an issue not otherwise discussed
or analyzed in the briefing was insufficient to warrant resolution).
Here, Lee did not appeal from the trial court's order granting summary
judgment in favor of the Cobains and enjoining the City from disclosing the
death-scene photographs. That order is the only order addressing the Cobains'
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substantive due process rights under the Fourteenth Amendment. Lee did not
assign error to the trial court's due process holding in his appellate brief. Neither
did Lee mention the trial court's due process holding in his statements of issues
pertaining to his assignments of error. Finally, Lee neither discussed the trial
court's due process holding in the argument section of his opening brief, nor did
he request relief from the trial court's ruling.
In his reply brief, Lee asserts that the omission of any mention of the trial
court's due process holding was "purely accidental." However, in his reply to the
Cobains' motion to dismiss, Lee argued that "the references to the due process
clause of the 14th Amendment are a particularly weak aspect of the defendants'
arguments." Lee also extoled the virtues of his "Associate of Technical Arts
degree in the ABA-approved Paralegal Studies program" where he "graduated
with a cumulative 4.0 GPA,the highest attainable grade point average," and
noted that he has "many years in dealing with courts as a pro se litigant and
defendant." In light of these assertions, it is questionable that Lee's failure to
appeal from, assign error to, analyze, or request relief from the trial court's due
process holding was "purely accidental."
In any event, because Lee entirely failed to appeal from or analyze the
trial court's due process holding, the Cobains were unable to respond to his
arguments on the issue. This prejudiced them as respondents. See Olson, 126
Wash. 2d at 321. Moreover, because it was the Cobains who first brought the due
process holding to our attention, Lee assumed the tactically advantageous
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No. 75815-2-1/7
position of being able to respond to the Cobains' presentation on appeal without
rebuttal.
Because Lee has failed to appeal from the trial court's order, assign error
to the court's ruling, analyze or otherwise discuss the ruling, or request relief from
the ruling, he forfeits his right to review of the issue and the trial court's order.6
B
Lee's failure to appeal from, assign error to, analyze, or otherwise request
relief from the trial court's due process ruling provides the basis for affirmance of
that trial court order. Nevertheless, because of the near quarter-century of
tenacity that Lee has displayed in pursuing his theory that Mr. Cobain was
murdered, we believe it will suit the parties' interests for us to expound upon the
wisdom and propriety of the trial court's order.
We review a trial court's decision on summary judgment de novo. Estate
of Haselwood v. Bremerton Ice Arena, Inc., 166 Wash. 2d 489, 497, 210 P.3d 308
(2009). Summary judgment is appropriate only if the supporting materials,
viewed in the light most favorable to the nonmoving party, demonstrate that
"there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." CR 56(c); Owen v. Burlington N. &
Santa Fe R.R. Co., 153 Wash. 2d 780, 787, 108 P.3d 1220(2005). "Once the
moving party has met this burden, however, the burden shifts to the nonmoving
6 We reach the same conclusion with regard to Lee's assertion that the trial court erred
by "failing to address in its written ruling/order five police photographs not a part of the crime
scene set, to which Lee had stated a statutory claim of $135,000." Lee addresses this contention
for the first time in his reply brief but does not assign error to any order or otherwise discuss or
analyze his contention. Indeed, the only mention of this statutory claim of $135,000 comes from
the statement of issues section of his consolidated reply brief. Lee forfeited review of this issue.
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No. 75815-2-1/8
party to set forth specific facts showing that there is a genuine issue for trial."
Sisters of Providence v. Snohomish County, 57 Wash. App. 848, 850, 790 P.2d 656
(1990). "The nonmoving party cannot simply rest upon the allegations of his
pleadings; he must affirmatively present the factual evidence upon which he
relies." Sisters of Providence, 57 Wash. App. at 850.
"Trial courts have broad discretionary power to fashion injunctive relief to
fit the particular circumstances of the case before it." Hoover v. Warner, 189 Wn.
App. 509, 528, 358 P.3d 1174(2015). "[O]ne who seeks relief by temporary or
permanent injunction must show (1)that he has a clear legal or equitable right,
(2) that he has a well-grounded fear of immediate invasion of that right, and (3)
that the acts complained of are either resulting in or will result in actual and
substantial injury to him." Kucera v. Dep't of Transp., 140 Wash. 2d 200, 209, 995
P.2d 63(2000)(alteration in original)(internal quotation marks omitted)(quoting
Tyler Pipe Indus., Inc. v. Dep't of Revenue, 96 Wash. 2d 785, 792, 638 P.2d 1213
(1982)).
In Marsh v. County of San Diego, the federal circuit court considered, as a
matter of first impression, whether "the common law right to non-interference with
a family's remembrance of a decedent is so ingrained in our traditions that it is
constitutionally protected." 680 F.3d 1148, 1154 (9th Cir. 2012). The court
recognized that such a right was protected under the Fourteenth Amendment.
The long-standing tradition of respecting family members' privacy in
death images partakes of both types of privacy interests protected
by the Fourteenth Amendment. First, the publication of death
images interferes with "the individual interest in avoiding disclosure
of personal matters. . . ." Whalen v. Roe,429 U.S.[589, 599,]97
S. Ct. 869[, 51 L. Ed. 2d 64(1977)]. Few things are more personal
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than the graphic details of a close family member's tragic death.
Images of the body usually reveal a great deal about the manner of
death and the decedent's suffering during his final moments—all
matters of private grief not generally shared with the world at large.
Second, a parent's right to control a deceased child's
remains and death images flows from the well-established
substantive due process right to family integrity. See Rosenbaum
v. Washoe County, 663 F.3d 1071, 1079 (9th Cir. 2011)("The
substantive due process right to family integrity or to familial
association is well established."). The interest of parents "in the
care, custody, and control of their children . . . is perhaps the
oldest of the fundamental liberty interests. . . ." Troxel v. Granville,
530 U.S. 57,65, 120 S. Ct. 2054, 147 L. Ed. 2d 49(2000). A
parent's right to choose how to care for a child in life reasonably
extends to decisions dealing with death, such as whether to have
an autopsy, how to dispose of the remains, whether to have a
memorial service and whether to publish an obituary. Therefore,
we find that the Constitution protects a parent's right to control the
physical remains, memory and images of a deceased child against
unwarranted public exploitation by the government.
Marsh, 680 F.3d at 1154.
The court then turned to substantive due process. At issue was whether
Marsh's substantive due process rights were violated when San Diego Deputy
District Attorney Jay Coulter released to the press death-scene photographs of
Marsh's son. Marsh, 680 F.3d at 1152. The court concluded that this disclosure
violated Marsh's substantive due process rights.
To violate substantive due process, the alleged conduct
must "shock[]the conscience" and "offend the community's sense
of fair play and decency." Rochin v. California, 342 U.S. 165, 172-
73, 72 S. Ct. 205, 96 L. Ed. 183(1952). Given that burial rites
"have been respected in almost all civilizations from time
immemorial" and "are a sign of the respect a society shows for the
deceased and for the surviving family members," the Favish Court
reasoned that unwarranted public exploitation of death images
degrades the respect accorded to families in their time of grief.
[Nat'l Archives & Records Admin. v. 1Favish, 541 U.S.[157,] 167-
68,[124 S. Ct. 1570[,158 L. Ed. 2d 319(2004)]. Mutilation of a
deceased family member's body, desecration of the burial site and
public display of death images are the kind of conduct that is likely
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No. 75815-2-1/10
to cause the family profound grief and therefore "shocks the
conscience" and "offend[s] the community's sense of fair play and
decency." Rochin, 342 U.S. at 172-73.
Marsh claims that when she learned that Coulter sent her
son's autopsy photograph to the press, she was "horrified; and
suffered severe emotional distress, fearing the day that she would
go on the Internet and find her son's hideous autopsy photos
displayed there." Marsh's fear is not unreasonable given the viral
nature of the Internet, where she might easily stumble upon
photographs of her dead son on news websites, blogs or social
media websites. This intrusion into the grief of a mother over her
dead son—without any legitimate governmental purpose—"shocks
the conscience" and therefore violates Marsh's substantive due
process right.
Marsh, 680 F.3d at 1154-55 (footnote omitted)(some alterations in original).
Here, the Cobains contend that the release of the death-scene
photographs of Mr. Cobain would violate their substantive due process rights
pursuant to the analysis set forth in Marsh. The Cobains assert that they would
personally suffer if the death-scene photographs were released to the public.
Courtney Love Cobain stated in her declaration:
I understand that the Plaintiff seeks the public release of
death-scene photos of Kurt that show his entire lifeless body, as
well as the damage done by the shotgun blast to his head. I have
never seen these graphic and disturbing images, nor do I ever want
to. ... Certainly, public disclosure would reopen all my old wounds,
and cause me and my family permanent—indeed, endless and
needless—pain and suffering, and would be a gross violation of our
privacy interests.
... Inevitably, these images will wind up on the Internet,
where they would be permanently circulated. By virtue of the fact
that Kurt is my late husband, they will also likely end up in search
results about myself. I would unavoidably come across them, and I
would never be able to erase those haunting images from my mind.
I cannot even imagine the enormity of the trauma and mental
scarring this would cause me, not to mention many others.
Frances Bean Cobain stated in her declaration:
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I once saw mock photos depicting my father's body. That
experience irreparably scarred me. I cried for days afterward.
Those horrible images still haunt me. I cannot imagine how terrible
it would be knowing that the photographs that Mr. Lee seeks were
public, and that 1 or any of my loved ones, including my father's
mother and sisters, might inadvertently see them. Release and
publication of the photographs would shock me and exacerbate the
posttraumatic stress that I have suffered since childhood.
At issue here are photographs that show the dead body of Mr. Cobain.
But the photographs are more than an oddity showcasing the tragic end of a
celebrated musician—to those who knew Mr. Cobain, the photographs show the
lifeless body of a son, a father, a husband, or a friend. As the Cobains'
declarations establish, the disclosure of these photographs would allow the entire
world to peer into one of the most private and distressing events of the Cobains'
lives. Once released, the photographs would become ammunition for those who
wish to taunt and antagonize the Cobains and their friends.
Pursuant to the analysis set forth in Marsh, the trial court correctly
concluded that the release of the death-scene photographs would shock the
conscious and offend the community's sense of fair play and decency, violating
the Cobains' substantive due process rights under the Fourteenth Amendment.
Permanently enjoining the City from disclosing those photographs is a
reasonable way to prevent such a violation. There was no error in the trial
court's ruling.
Ill
Lee contends that the trial court erred by granting summary judgment in
favor of the City. This is so, he asserts, because none of the documents that he
requested are exempt from disclosure under the PRA.
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We review de novo agency determinations challenged under the PRA.
RCW 42.56.550(3); Resident Action Council v. Seattle Hous. Auth., 177 Wash. 2d
417, 428, 327 P.3d 600 (2013). The agency carries the burden of establishing
that an exemption applies under the PRA. RCW 42.56.550(1); Resident Action
Council, 177 Wash. 2d at 428. "A public records case may be decided based on
affidavits alone." Forbes v. City of Gold Bar, 171 Wash. App. 857, 867, 288 P.3d
384(2012). "Purely speculative claims about the existence and discoverability of
other documents will not overcome an agency affidavit, which is accorded a
presumption of good faith." Forbes, 171 Wash. App. at 867 (citing Trentadue v.
Federal Bureau of Investigation, 572 F.3d 794, 808 (10th Cir. 2009)).
The PRA requires disclosure of "all public records" unless an exemption
applies. RCW 42.56.070(1). A "public record" is "any writing containing
information relating to the conduct of government or the performance of any
governmental or proprietary function prepared, owned, used, or retained by any
state or local agency regardless of physical form of characteristics." RCW
42.56.010(3). "The PRA's mandate for broad disclosure is not absolute. The
PRA contains numerous exemptions that protect certain information or records
from disclosure, and the PRA also incorporates any 'other statute' that prohibits
disclosure of information or records." Resident Action Council, 177 Wash. 2d at 432
(citing RCW 42.56.070, .230-.480, .600-.610). "The PRA's exemptions are
provided solely to protect relevant privacy rights or vital governmental interests
that sometimes outweigh the PRA's broad policy in favor of disclosing public
records." Resident Action Council, 177 Wash. 2d at 432. Importantly, "the basic
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purpose and policy of[the PRA] is to allow public scrutiny of government, rather
than to promote scrutiny of particular individuals who are unrelated to any
governmental operation." In re Rosier, 105 Wash. 2d 606, 611, 717 P.2d 1353
(1986).
A
Lee first contends that the trial court erred by ruling that the death-scene
photographs are exempt from disclosure under the PRA. We disagree.
The PRA requires the disclosure of public records "unless the record falls
within the specific exemptions of. . . [an]other statute which exempts or prohibits
disclosure of specific information or records." RCW 42.56.070(1). The
Fourteenth Amendment's privacy protections are necessarily a part of the PRA's
"other statute" exemption. White v. Clark County, 188 Wash. App. 622, 631-32,
354 P.3d 38(2015)(holding that the PRA's "other statute" exemption is derived
from a combination of the privacy protections afforded by the Washington
Constitution and various other statutes and regulations and noting that IV the
identity of a voter could be determined by a review of certain ballots, article VI,
section 6 would preclude production of those ballots"); see also Yakima v.
Yakima Herald-Republic, 170 Wash. 2d 775, 808, 246 P.3d 768(2011)("other laws'
includes the United States Constitution"); see also Freedom Found. v. Gregoire,
178 Wash. 2d 686, 695, 310 P.3d 1252(2013)("the PRA must give way to
constitutional mandates").
As discussed, disclosure of the death-scene photographs would violate
the Cobains' substantive due process rights under the Fourteenth Amendment.
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Marsh, 680 F.3d at 1154-55. Accordingly, the death-scene photographs are
exempt from disclosure pursuant to the PRA's "other statute" provision. RCW
42.56.070(1). There was no error.
Lee next contends that the trial court erred by granting summary judgment
in favor of the City with regard to the other exempt or redacted documents that
were withheld by the City. These documents include Mr. Cobain's autopsy report
in its entirety, two pages of a nine page drug influence evaluation, redaction of
certain documents that show witness identifying information, redaction of certain
documents that contain Social Security numbers and credit card information,
redaction of certain documents that contain nonconviction data and jail records,
and redaction of certain documents relating to juvenile records and telephone
numbers. Each is addressed in turn.
Autopsy Report
The trial court ruled that Mr. Cobain's autopsy report was exempt from
disclosure pursuant to RCW 68.50.105(1). That statute provides:
Reports and records of autopsies or postmortems shall be
confidential, except that the following persons may examine and
obtain copies of any such report or record: The personal
representative of the decedent as defined in RCW 11.02.005, any
family member,the attending physician or advanced registered
nurse practitioner, the prosecuting attorney or law enforcement
agencies having jurisdiction, public health officials, the department
of labor and industries in cases in which it has an interest under
RCW 68.50.103, or the secretary of the department of social and
health services or his or her designee in cases being reviewed
under RCW 74.13.640.
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No. 75815-2-1/15
RCW 68.50.105(1). This statute is an "other statute" incorporated into the PRA.
RCW 42.56.070(1). Accordingly, autopsy reports are categorically exempt from
disclosure. See Comaroto v. Pierce County Med. Exam'r's Office, 111 Wash. App.
69, 74,43 P.3d 539(2002)(holding that a suicide note was a postmortem report
pursuant to RCW 68.50.105(1) and therefore exempt from disclosure).
Lee recognizes that the autopsy report in question "would seem to be the
definitive example of an exemption which is clearly established under another
statute," but nevertheless refuses to concede that the exemption is appropriate
under the circumstances of this case. Lee asserts variously that "the entire
statute could be the subject of a constitutional challenge,""many questions could
be raised about the suppression of these documents in full," "such records...
are routinely displayed as evidence in court proceedings," and that "the City has
claimed exemption without any description of the contents of the report."
An appellant must provide "argument in support of the issues presented
for review, together with citations to legal authority and references to relevant
parts of the record." RAP 10.3(a)(6). We will generally not consider claims
unsupported by citation to authority, references to the record, or meaningful
analysis. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d
801, 809, 828 P.2d 549 (1992). Pro se litigants are held to the same standards
as attorneys and must comply with all procedural rules on appeal. In re Marriage
of Olson, 69 Wash. App. 621, 626, 850 P.2d 527(1993).
Autopsy reports are categorically exempt from disclosure under the PRA.
Although Lee contends that the circumstances here warrant disclosure, he fails
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to cite to relevant authority or otherwise provide meaningful analysis in support of
his assertions. There was no error.
Drug Influence Evaluation
The trial court ruled that the drug influence evaluation was exempt from
disclosure pursuant to RCW 70.02.020,former RCW 70.96A.150,7 and RCW
42.56.240(1). Mary Perry, the director of transparency and privacy for the City,
submitted a declaration stating that the redacted portions of the drug influence
evaluation in question were "not prepared by SPD, do not mention SPD, and
refer and relate[] solely to Ms. Courtney Love-Cobain, Mr. Cobain's widow. More
specifically, these two pages discuss medical treatment issues, including issues
regarding possible drug use and treatment."
Pursuant to RCW 70.02.020, "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."
"Health care information" is "any information. . . 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(16). RCW 70.02.020 is an "other statute" incorporated
into the PRA. RCW 42.56.070(1). Accordingly, health care information is
exempt from disclosure under the PRA.
7 RCW 70.96A.150 was repealed effective April 1, 2016, nearly a year after the City
invoked the exemption.
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No. 75815-2-1/17
Lee contends that the requested information is not exempt from disclosure
because the City is not a "health care provider." While this may be so, RCW
70.02.020 is incorporated into the PRA through RCW 42.56.360(2), which
provides that "Chapter 70.02 RCW applies to public inspection and copying of
health care information of patients." Prison Legal News, Inc. v. Dep't of Corr.,
154 Wash. 2d 628, 644, 115 P.3d 316(2005)(discussing former RCW 42.17.312,
which is identical to RCW 42.56.360(2)). Accordingly,"RCW 70.02.020 prohibits
disclosure of'health care information' without the patient's written authorization."
Prison Legal News, 154 Wash. 2d at 644.
The redaction of the drug influence evaluation was also justified by former
RCW 70.96A.150. Former RCW 70.96A.150 provided that "registration and
other records of treatment programs shall remain confidential." There was no
error.
Witness Identifying Information
The trial court ruled that the redaction of certain witness identifying
information was authorized by RCW 42.56.240(2). That statute provides, in
pertinent part, that the following investigative information is exempt from public
inspection:
Information revealing the identity of persons who are witnesses to
or victims of crime or who file complaints with investigative, law
enforcement, or penology agencies, other than the commission, if
disclosure would endanger any person's life, physical safety, or
property. If at the time a complaint is filed the complainant, victim,
or witness indicates a desire for disclosure or nondisclosure, such
desire shall govern.
RCW 42.56.240(2)(emphasis added).
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Here, certain witnesses requested that their identity not be disclosed at
the time that they provided information to police during the 1995 investigation of
Mr. Cobain's death. Mary Perry's declaration states that the names redacted by
the City are the names of the people who requested that their identity not be
disclosed in 1995.
Lee is correct that, other than the City's declaration, there is nothing in the
record establishing that the names redacted by the City in response to Lee's
request are the same names that were redacted by request in 1995. But
speculation does not overcome the presumption of good faith afforded to an
agency affidavit. Forbes, 171 Wash. App. at 867. The City provided
contemporaneous documentation showing that certain witnesses requested that
their identity not be disclosed at the time that they provided information to the
City. Accordingly, those names are exempt from disclosure. There was no error.
Other Redactions
The trial court ruled that redaction of Social Security and credit card
numbers was authorized by RCW 42.56.230(5). The trial court ruled that the
redaction of nonconviction data and jail records was authorized by RCW
10.97.080 and RCW 70.48.100(2). Finally, the trial court ruled that redactions of
Mr. Cobain's juvenile records and the telephone number of an SPD officer were
authorized by chapter 13.50 RCW, RCW 42.56.240(1), and RCW 42.56.250(4).
RCW 42.56.230(5)exempts from disclosure "[c]redit card numbers, debit
card numbers, electronic check numbers, card expiration dates, or bank or other
financial information. . . including social security numbers." RCW 10.97.080
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prohibits the disclosure of "any nonconviction data except for the person who is
the subject of the record." RCW 70.48.100(2) requires that "the records of a
person confined in jail shall be held in confidence." RCW 13.50.050(3) provides
that 141 records other than the official juvenile court file are confidential."
Finally, RCW 42.56.250(3) exempts from disclosure "residential telephone
numbers, personal wireless telephone numbers.. . of employees or volunteers
of a public agency."
Lee recognizes that all of this information is categorically exempt from
disclosure. Lee's response is that, because Mr. Cobain is dead, he is not a
"person" and that there is nothing preventing the City from disclosing the
personal information of dead people.
An appellant must provide "argument in support of the issues presented
for review, together with citations to legal authority and references to relevant
parts of the record." RAP 10.3(a)(6). Lee provides no authority for his assertion
that the categorical exemptions here apply only to living persons. There was no
error.
Affirmed.
We concur:
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)
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