Question:

The public agency I work for recently conducted an internal investigation into the conduct of an employee who works in the field. Is our internal investigation subject to disclosure under the Public Records Act, or is there an RCW that exempts it? We are concerned that if some of the records, such as interview notes, were disclosed, it would create concern of retaliation and make some employees hesitant to cooperate in the future. We are aware of Bainbridge Island v. City of Puyallup, but I wanted to see if there was a way to keep some of the records created as part of the investigation confidential?

Discussion:

There are several possible exemptions that may apply to at least some of the information, but it's unlikely that most of the internal investigation will be exempt under the Public Records Act. Moreover, this is not legal advice, so make sure you work with your attorney before you withhold any records.

1) If the investigation was a criminal investigation or an investigation of a law enforcement officer, parts might be subject to redaction based on the need for effective law enforcement. Your agency would need to show that disclosure would interfere with your ability to conduct that investigation or some future law enforcement investigation. This standard could apply whether the allegations are substantiated or not, but would be a very high bar to meet after the original investigation is complete.

2) If the alleged misconduct was unsubstantiated but so heinous that the mere disclosure of the allegation would substantially harm the employee's reputation, particularly if it is sexual in nature, you could redact the identity of the employee. Moreover, if such a redaction would not protect the employee's privacy, there may be a constitutional argument for confidentiality. Most allegations are not heinous enough and there is no case law on the possible constitutional argument, so proceed with caution if you are looking at this possibility.

3) If there are other employees identified in the record and disclosure would be highly offensive to that employee, you may also be able to redact that employee's identifying information if there is no legitimate public interest in knowing that identity. An example of this would be if a supervisor was alleged to have sexually harassed an employee and the supervisor and victim had engaged in sexual conduct, you might be able to redact the victim's identity. But the mere fact that an employee wants to remain anonymous is not enough.

4) If your primary intent in conducting the investigation was to defend against anticipated legal claims (either a lawsuit or and administrative claim, for example to the EEOC), the investigative records might qualify as “work product.” This will not apply to every employee investigation – rather your agency will have to show that in this particular case, based on its particular circumstances, your response was made in anticipation of litigation and it was not your standard response. On the other hand, if you have a policy that mandates an investigation and you handled this allegation like any other allegation under the policy, it would be difficult to show it was work product.

If none of the above apply to your situation, and the allegations that were being investigated were substantiated, the best approach might be to send out a third party notice if there is a chance someone would be concerned about disclosure of the investigation to which they were a party.

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