Arthur West v. Thurston County

FILED

APRIL 13, 2023

In the Office of the Clerk of Court

WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

ARTHUR WEST, ) No. 39011-0-III

)

Appellant, )

)

v. ) UNPUBLISHED OPINION

)

THURSTON COUNTY, )

)

Respondent. )

SIDDOWAY, J. — Arthur West appeals superior court orders denying him relief for

what he contends were Thurston County’s violations of the Public Records Act (PRA),

chapter 42.56 RCW. We reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

In early September 2020, members of a federal task force shot and killed fugitive

Michael Reinoehl at an apartment complex in Thurston County. A news release issued

by the Thurston County Sheriff’s Office (TCSO) the next day reported that members of

the Pacific Northwest Violent Offender Taskforce led by U.S. marshals were involved in

the incident, and that

[t]he team was at the location conducting surveillance on an apartment

where they believed a wanted homicide suspect [Reinoehl] was located.

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The wanted subject came out of the apartment and got into a vehicle to

leave. During the attempt to apprehend him, shots were fired at the suspect

in the vehicle and he fled from the vehicle on foot. Additional shots were

fired at the suspect and he was later pronounced deceased at the location.

We can confirm at this time that the suspect was armed with a handgun.

Clerk’s Papers (CP) at 43. The federal task force operated in Western Washington in

concert with law enforcement partners, including a Thurston County subgroup. That

subgroup included TCSO deputies holding cross-commissions. The Thurston County

subgroup had not been asked by the U.S. Marshals Service to assist in Mr. Reinoehl’s

apprehension, however, and had not been involved in the shooting.

Under Washington law, an independent investigation was required where the use

of deadly force by one or more peace officers had resulted in Mr. Reinoehl’s death. The

TCSO became the lead agency responsible for the investigation.

In October 2020, Arthur West directed the following public record request to

Thurston County Public Records Officer Karen Horowitz:

RE: Public Records Request for Reinoehl Arrest and Investigation Records

Please consider this as a request for inspection or copies of records under

RCW 42.56, the common law, and any administrative rules that may apply,

in regard to the following records:

All records and communications concerning the investigation, apprehension

and killing of Michael Reinoel [sic], to include any interdepartmental

communications, any police reports, CAPCOM records, any radio, radio-

telephone, text or other electronic communications, any emails, writings,

memos, directives, or other communications of any form, to include any

review, investigation, or analysis of any form of the above mentioned

events and related activity.

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All words should be afforded their ordinary meaning as indicated by

context, State Law, and Webster’s Third New International Dictionary.

Please feel free to contact me if any clarification or limitation in scope is

necessary.

Thank you for your consideration.

CP at 29-30 (emphasis omitted).

Within five days, Ms. Horowitz acknowledged the request and denied it,

explaining, “The records you have requested pertain to an active and on-going

investigation . . . . These records are categorically exempt from production pursuant to

RCW 42.56.240(1).[1] See Newman v. King County, 133 Wn.2d 565, 947 P.2d 712

(1997).” CP at 30. She stated that his request for public records was considered closed,

but he was free to re-request the documents at a later date.

Mr. West immediately filed suit against the County seeking declaratory relief,

costs, fees, penalties, and in-camera review of withheld records. He alleged that the

categorical exemption relied on by the County did not apply because the TCSO was

involved in an internal investigation to which no categorical exemption applied, citing

1

RCW 42.56.240 exempts from public inspection and copying certain

“investigative, law enforcement, and crime victim information”; its subsection (1)

exempts:

Specific intelligence information and specific investigative records

compiled 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.

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Sargent v. Seattle Police Department, 179 Wn.2d 376, 314 P.3d 1093 (2013). Mr. West

contended the County was required to search for responsive records, disclose any that

were not exempt, and provide him with a privilege log identifying any records it claimed

were exempt. A couple of weeks after filing suit, Mr. West filed a motion for in camera

review of the withheld records.

At the hearing on his motion for in camera review, Mr. West argued that the

investigation being conducted was taking place under new Washington law that required

an investigation of all uses of deadly force by police officers. Given the nature of the

investigation, he argued that the reasoning of the Washington Supreme Court’s decision

dealing with internal investigations, not criminal investigations, should apply. He further

stated,

I would also point out that to the extent that the rules of the Criminal

Justice Training Commission apply, they require the policies and operating

procedures of the IGG [sic2] to be available to the public, the names,

members, supervisors, commanders, to be disclosed.

Then there’s also supposed to be a weekly progress report made of

the conduct of the investigation[,] all which would be public record.

Rep. of Proc. (RP) at 8. Characterizing his request as “broadly for all records related to

any investigation,” not solely for the investigative file, he argued “there’s the question of

Presumably “the IIT,” or “Independent [I]nvestigative [T]eam,” the term used in

2

Criminal Justice Training Commission regulations for the group of individuals who

“operate completely independent of any involved agency to conduct investigations of

police deadly force incidents.” WAC 139-12-020.

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whether there are other records beyond the investigative file that need[ ] to be produced.”

Id.

In responding, the deputy prosecutor pointed out that a declaration she had filed

from TCSO Lieutenant Ray Brady characterized the investigation as a homicide

investigation, adding, “This is not an internal employment or misconduct investigation in

so far as Thurston County is concerned because no Thurston County officer was involved

in this shooting or was even present on the evening of Mr. Reinoehl’s death.” RP at 9.

She added that to the extent Mr. West “is now clarifying his request,” and “asking for

things that are disclosable under the applicable WAC [(Washington Administrative Code)

regulation] . . . then we would disclose them.” RP at 10. In response to a question from

the court, the deputy prosecutor stated that her understanding was that Mr. West had not

requested the items disclosable under the WAC, but she was willing to treat his mention

of the documents in the hearing as a clarification rather than require him to make a new

record request.

The trial court issued a memorandum decision shortly after the hearing in which it

ruled that “[t]he sole purpose of TCSO involvement in this matter is investigative as a

law enforcement agency,” so the County’s “reliance on RCW 42.56.240(1) is appropriate

and TCSO is justified in asserting the statutory blanket exemption during the time of its

ongoing investigation.” CP at 32. As for the clarification during the hearing that Mr.

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West believed responsive documents were required to be disclosed by regulation, the

court said it would “reserve its decision, pending Defendant’s response to the request.”

CP at 32. Mr. West filed a motion to reconsider in camera review, which was denied.

The motion for in camera review had been heard on November 23, 2020, and that

afternoon Ms. Horowitz e-mailed Mr. West to say she was told he had clarified his

request to include “the following records”:

• Policy documents and operating procedure documents from the

Thurston County Sheriff’s Office for the Independent Investigative Team

(IIT)

• The names of the members, supervisors, commanders, and nonlaw

enforcement community representatives on the IIT

• All press releases or public updates from the Thurston County Sheriff’s

Office related to the IIT investigation of the death of Michael Reinoehl

CP at 35. Ms. Horowitz stated she “did not previously understand you to have requested

copies of these records,” and asked him to inform the County by reply if he wanted it to

process such a request. CP at 35. Mr. West replied that the records were covered by his

original request and, “I do not believe a second request is necessary or appropriate.”

CP at 37.

On November 30, 2020, the County produced approximately 80 pages responsive

to the three categories of records set forth in Ms. Horowitz’s November 23 e-mail.

In February 2021, Mr. West and the County filed cross motions for summary judgment.

In support of his motion for summary judgment, Mr. West filed a declaration stating that

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other agencies had furnished extensive records related to the Reinoehl use of force

investigation in response to virtually the same request he submitted to Thurston County.

The other agencies were Pierce County, the city of Lakewood, and the Washington State

Department of Corrections (DOC). Because he had brought a PRA lawsuit against DOC

for its initial nondisclosure and the trial court in that case found a PRA violation, Mr.

West argued that res judicata and collateral estoppel required the trial court to rule against

Thurston County.

The trial court denied Mr. West’s motion for summary judgment and granted

summary judgment to Thurston County. In a memorandum opinion, the trial court

reiterated its view that the County justifiably invoked a categorical exemption in response

to Mr. West’s records request. Mr. West filed a motion to reconsider summary judgment,

which was denied. Mr. West appeals.

ANALYSIS

Mr. West appeals the trial court’s orders denying his motion for in camera review

and awarding summary judgment to the County.3

3

Mr. West also nominally appeals the trial court’s orders denying reconsideration

of each of those orders. The trial court denied both reconsideration motions on the basis

that Mr. West demonstrated no grounds under CR 59(a) warranting reconsideration. Mr.

West fails to provide argument in his brief as to why denying reconsideration (as

distinguished from the original order) was error. We will not review the orders denying

reconsideration. See RAP 10.3(a)(6); Holland v. City of Tacoma, 90 Wn. App. 533, 538,

954 P.2d 290 (1998) (noting “[p]assing treatment of an issue or lack of reasoned

argument” does not merit our consideration).

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The history and nature of the statutorily-required use of force investigation process

is viewed by Mr. West as important to the issues presented, so we begin by addressing it

briefly.

I. BACKGROUND: INDEPENDENT INVESTIGATION OF USE OF DEADLY FORCE BY PEACE

OFFICERS

In 2017, a coalition of Washington residents and organizations concerned about

police use of deadly force in Washington formed De-Escalate Washington to promote

reform. Eyman v. Wyman, 191 Wn.2d 581, 588, 424 P.3d 1183 (2018). They developed

Initiative 940 (I-940) and collected enough signatures to have I-940 certified to the

legislature in January 2018. Id. Irregular action taken on the initiative in the legislature

triggered litigation, in response to which the Washington Supreme Court directed the

secretary of state to certify I-940 to the ballot for approval or rejection by the voters.

Id. at 583. It was approved by the voters in the November 2018 general election. Its

provisions were amended by the legislature by Substitute House Bill 1064. LAWS OF

2019, ch. 1, §§ 1-11. I-940 took effect July 28, 2019.

At the time of Mr. Reinoehl’s death, one of the initiative’s provisions, former

RCW 10.114.011 (2019), provided that except as required by federal consent decree,

federal settlement agreement, or federal court order,

where the use of deadly force by a peace officer results in death, substantial

bodily harm, or great bodily harm, an independent investigation must be

completed to inform any determination of whether the use of deadly force

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met the good faith standard established in RCW 9A.16.040[4] and satisfied

other applicable laws and policies. The investigation must be completely

independent of the agency whose officer was involved in the use of deadly

force. The criminal justice training commission must adopt rules

establishing criteria to determine what qualifies as an independent

investigation pursuant to this section.

LAWS OF 2019, ch. 4, § 5. The criminal justice training commission adopted chapter 139-

12 WAC effective in January 2020 to implement the requirement of an investigation

independent of the involved agency. WAC 139-12-010.

In the case of Mr. Reinoehl’s shooting, the independent investigative team, or IIT,

charged with conducting the investigation was the Region 3 Critical Incident

Investigation Team. In addition to Thurston County members, it included members from

the Gray’s Harbor County and Lewis County Sheriff’s Offices, and from the Washington

State Patrol. The TCSO was the lead agency and Lieutenant Brady served as the team

commander.

WAC 139-12-030 is the criminal justice training commission regulation that

identifies the categories of information Mr. West raised at the November 23 hearing as

required to be disclosed. The regulation identifies five principles as fundamental to

4

RCW 9A.16.040(4) provides that

[a] peace officer shall not be held criminally liable for using deadly force in

good faith, where “good faith” is an objective standard which shall consider

all the facts, circumstances, and information known to the officer at the

time to determine whether a similarly situated reasonable officer would

have believed that the use of deadly force was necessary to prevent death or

serious physical harm to the officer or another individual.

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enhancing public trust in the integrity of independent investigations involving police use

of deadly force: independence, transparency, communication, credible process, and

credible investigators.

In addressing transparency, WAC 139-12-030(2)(b) provides that the following

will be “available to the public”: “[t]he policies and operating procedures of the IIT” and

“[t]he names of the members, supervisors, commanders, and nonlaw enforcement

community representatives on the IIT.” It also provides that “[t]he commander or other

representative of the IIT will provide public updates about the investigation at a

minimum of once per week, even if there is no new progress to report.”

II. THE COUNTY’S INVESTIGATIVE RECORDS WERE EXEMPT FROM DISCLOSURE

The PRA is a strongly worded mandate for broad disclosure of public records.

Resident Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 431, 327 P.3d 600

(2013). Under RCW 42.56.070(1), a governmental agency must disclose public records

upon request unless a specific exemption applies. Ameriquest Mortg. Co. v. Att’y Gen.,

177 Wn.2d 467, 485-86, 300 P.3d 799 (2013). Judicial review of an agency’s PRA

response is de novo. RCW 42.56.550(3).

Information contained within an open and active criminal investigation file is

categorically exempt from PRA disclosure under RCW 42.56.240(1). Newman v. King

County, 133 Wn.2d 565, 575, 947 P.2d 712 (1997). Categorical exemption for an on-

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going criminal investigation is a bright-line rule, but it has limited application. The

categorical exemption from disclosure ends once an investigation has been closed and a

case is referred for prosecution. Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d

472, 479-80, 987 P.2d 620 (1999). The categorical exemption also does not apply to a

law enforcement agency’s internal disciplinary investigations. Sargeant, 179 Wn.2d at

392. To the extent an investigation could result in criminal charges as well as

disciplinary action, the criminal investigation is outside the parameters of the internal

investigation. Id.

Mr. West claims the exemption under RCW 42.56.240(1) is inapplicable to

Thurston County’s records, at least in part, because the TCSO was involved in an internal

investigation of officer misconduct. He has no evidence suggesting that a TCSO officer

was involved in the shooting death of Mr. Reinoehl, which would be required for it to be

an “internal” investigation. By statute, TCSO could not be a member of the IIT if that

were the case. See RCW 10.114.011 (“The investigation must be completely

independent of the agency whose officer was involved in the use of deadly force.”).

Mr. West’s argument seems to be that an investigation under RCW 10.114.011 is

tantamount or akin to an internal investigation, given what he believes motivated I-940

and the “use of deadly force” legislation that followed. But the applicable statutes and

regulations do not give the IIT or its lead agency disciplinary authority. Rather, RCW

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10.114.011 authorizes an investigation into whether the use of deadly force met the good

faith standard of RCW 9A.16.040, which determines the officer’s criminal liability. This

is a criminal investigation.

As the County pointed out below, a number of provisions of WAC 139-12-030 are

consistent with the confidential criminal character of the investigation. First, there is the

negative implication of the transparency provision on which Mr. West relies. If only the

limited information identified is to be publicly available while the investigation is open,

the implication is that other information is not. WAC 139-12-030(2)(b) requires nonlaw

enforcement community representatives on the investigation team to sign a binding

confidentiality agreement at the beginning of each police use of deadly force

investigation, to remain in effect until the prosecutor of jurisdiction declines to file

charges or the criminal case is concluded. It provides that if the confidentiality

agreement is violated, the nonlaw enforcement representative may be subject to

prosecution. It provides that “[w]hen an independent investigation is complete, the

information will be made available to the public in a manner consistent with applicable

state law.” Id.

Mr. West argues that even if the IIT investigation was not internal, the categorical

exemption to PRA disclosure should not apply to investigations of law enforcement

officers for public policy reasons. This position is inconsistent with the Supreme Court’s

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decision in Sargent, which recognized the possibility of categorical exemption for

criminal investigation records, so long as the criminal investigation is not closed. 179

Wn.2d at 389-90. We will not depart from the standard set by Sargent.

As a final argument, Mr. West points to the fact that Pierce County, the city of

Lakewood, and the DOC disclosed records in response to Mr. West’s identical requests to

them. But Thurston County is a distinct entity with unique interests as it relates to the

documents he was requesting. At the time Mr. West submitted his PRA request,

Thurston County was actively investigating the circumstances of Mr. Reinoehl’s death

under the auspices of a homicide investigation. There is no indication other agencies

were involved in the same endeavor. Thus, while Thurston County was entitled to a

categorical exemption under RCW 42.56.240(1), the other agencies presumably were not.

As the Supreme Court explained in Newman, even documents such as newspaper

articles that are prepared by others and would be nonexempt if compiled for other

purposes are subject to the categorical exemption when they are compiled as part of a

criminal investigation. 133 Wn.2d at 572-73. For this reason, the fact that Mr. West was

able to get materials related to Mr. Reinoehl’s death from other agencies has no bearing

on whether Thurston County was obliged to turn over the same paperwork.

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III. MR. WEST’S REQUEST WAS BROAD ENOUGH TO INCLUDE THE PRESS RELEASES

ISSUED BY TCSO, BUT NOT POLICIES, PROCEDURES AND IIT TEAM IDENTIFICATION

Mr. West argues that the documents produced by the County on November 30,

2020, fell within the scope of his request, were wrongly withheld initially, and he is

entitled to statutory penalties for their wrongful withholding. He emphasizes that his

request sought inspection or copies “of records under RCW 42.56, the common law, and

any administrative rules that may apply. . . ,” CP at 29, which he contends covered the

documents available to the public under WAC 139-12-030. (Emphasis added and

omitted.) He argues that by broadly requesting “[a]ll records and communications

concerning the investigation, apprehension and killing” of Mr. Reineohl, he should have

been provided with all of the press releases. CP at 29 (emphasis omitted). We reject the

former argument, but agree with the latter.

To obtain records under the PRA, a requester must state with “sufficient clarity”

that they are seeking an identifiable public record. Wood v. Lowe, 102 Wn. App. 872,

878, 10 P.3d 494 (2000). A public record is “identifiable” when the requester provides “a

reasonable description” enabling the agency to locate the record. Beal v. City of Seattle,

150 Wn. App. 865, 872, 209 P.3d 872 (2009). While agencies should construe the PRA

broadly, they are not required to read minds. Cantu v. Yakima Sch. Dist. No. 7, 23 Wn.

App. 2d 57, 82, 514 P.3d 661 (2022) (citing Bonamy v. City of Seattle, 92 Wn. App. 403,

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409, 960 P.2d 447 (1998)). The law does not require agencies “to disclose records that

have not yet been requested.” Bonamy, 92 Wn. App. at 409.

Mr. West’s request for inspection or copies of “records under . . . any

administrative rules that may apply,” CP at 29, cannot fairly be read as independent of

the subject matter he then described. (Emphasis omitted.) Where a subject matter is

described, no agency would reasonably construe “records under . . . any administrative

rules that may apply” to be asking for every document identified by regulation as

publicly-available, whether related to the subject matter or not.

The subject matter of records requested by Mr. West were those “concerning the

investigation, apprehension and killing of Michael Reinoel [sic].” CP at 29 (emphasis

omitted). A copy of policies and operating procedures of an IIT established by the

criminal justice training commission would not reasonably be viewed as a record

concerning the investigation, apprehension and killing of Mr. Reineohl. The names of

the IIT’s members, supervisors, commanders, and nonlaw enforcement community

representatives would not reasonably be viewed as a record concerning that investigation,

apprehension and killing. These documents were not wrongly withheld. If Mr. West was

truly seeking information about the investigating body and its policies, he could easily

have said so. Cf. Bonamy, 92 Wn. App. at 409 (request was reasonably construed as

seeking information about policies, but not policies themselves).

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By contrast, public updates about the investigation produced by the lead agency do

clearly fall within a request for records and communications concerning the investigation,

apprehension and killing of Mr. Reineohl. We disagree with the dissent’s position that,

having been made available in some fashion as press releases, the public updates were

not required to be disclosed in response to Mr. West’s request. “A document is never

exempt from disclosure; it can be exempt only from production” and “[a]n agency

withholding a document must claim a ‘specific exemption.’” Sanders v. State, 169

Wn.2d 827, 836, 240 P.3d 120 (2010). No “press release” exemption exists. The public

updates should have been disclosed in response to the record request.

The County protests, however, that the subject line of Mr. West’s record request

limited the scope of his request by stating, “RE: Public Records Request for Reinoehl

Arrest and Investigation Records.” CP at 29 (emphasis added and omitted). We

disagree. In crafting a public record request, the requester can be expected to focus on

the body of his request, not its subject line. While a subject line could be an aid to

construing an ambiguous narrative request, the narrative request in this case

unambiguously requested records and communications “concerning” the investigation,

apprehension and killing of Mr. Reinoehl. CP at 29 (emphasis omitted). A public update

about the investigation is a record concerning the investigation. Given the strong

presumption in favor of full disclosure, an agency should not unreasonably assume a

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narrow interpretation of a request. Cantu, 23 Wn. App. 2d at 99 (citing Zink v. City of

Mesa, 140 Wn. App. 328, 337, 166 P.3d 738 (2007)). After applying a broad

interpretation, if any ambiguity remains, it is incumbent upon the agency to clarify that

ambiguity. Id. (citing West v. City of Tacoma, 12 Wn. App. 2d 45, 81, 456 P.3d 894

(2020).

We reverse the court’s order granting the County’s motion for summary judgment

and denying Mr. West’s cross motion insofar as they hold that the press releases or public

updates from the TCSO were properly withheld. We remand with directions to the trial

court to determine the relief to which Mr. West is entitled.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

Siddoway, J.

I CONCUR:

Fearing, C.J.

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PENNELL, J. (dissenting) — I disagree with the majority’s assessment that Arthur

West’s initial public records request should be read to include press releases from the

Thurston County Sheriff’s Office (TCSO).

Mr. West’s request made clear that he was looking for investigative records. Not

only did the subject line of Mr. West’s request indicate he was looking for “Investigation

Records,” the body of the request did as well. Clerk’s Papers at 29-30. All the detailed

records listed in Mr. West’s request pertained to internal investigative reports and

information. He sought access to documents such as “police reports,” “interdepartmental

communications,” and “radio, radio-telephone, text, or other electronic communications.”

Id. at 29.

The actions of Arthur West confirm that he was not initially seeking copies of

noninvestigative press releases. When Thurston County responded to Mr. West by

explaining the requested records were exempt from production under RCW 42.56.240(1)

(pertaining to ongoing investigative reports), Mr. West did not reply by claiming he

had been misunderstood. Nor did he mention press releases. Instead, he filed suit

challenging the legal basis of the denial. Mr. West insisted he was entitled to

investigatory records because he claimed the TCSO was actually involved in an internal

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investigation, not a regular criminal investigation. Mr. West cited Sargent v. Seattle

Police Department, 179 Wn.2d 376, 314 P.3d 1093 (2013), to support his claim that

internal affairs investigations are not subject to a categorical exemption under the Public

Records Act (PRA), chapter 42.56 RCW.

At the time of the initial PRA submission, a reasonable person reading Mr. West’s

request and giving it a liberal construction would not have understood that Mr. West was

looking for copies of press releases. Context matters. The plain text of Mr. West’s request

made it clear he was looking for internal investigative documents based on a mistaken

legal theory about the TCSO’s involvement. Furthermore, press releases, by definition,

are documents that an agency has already distributed to the public. Mr. West’s request

cannot reasonably be read as encompassing information already made available to the

public by Thurston County.

The purpose of the PRA “is to foster transparency and accountability.” John

Doe A v. Wash. State Patrol, 185 Wn.2d 363, 371, 374 P.3d 63 (2016). These goals

are incentivized when there is a threat of penalty for nondisclosure of public records.

Yousoufian v. Off. of Sims, 168 Wn.2d 444, 461, 229 P.3d 735 (2010). But when records

have already been provided, the purposes of the PRA have already been met. See Smith v.

Okanogan County, 100 Wn. App. 7, 12, 994 P.2d 857 (2000) (“The [PRA] does not

require agencies to research or explain public records, but only to make those records

accessible to the public.”). It was reasonable for Thurston County to interpret Mr. West’s

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request as one that was not aimed at records that were already available through press

releases.1 I dissent from the majority’s conclusion that Mr. West has shown a PRA

violation.

Pennell, J.

1

This does not mean that press releases need not be disclosed if requested, only

that it was reasonable for Thurston County to initially understand Mr. West’s request as

not covering press releases. Once Mr. West made a request for press releases, Thurston

County properly disclosed the records.

3