Public Records Act collides with privacy

WATERVILLE — The state Public Records Act collided with a parental claim of privacy Friday morning, May 2, during an hour-long online hearing in Douglas County Superior Court.

At issue is whether public records routinely available for a vehicle crash should be provided to the media or if a third party could block disclosure because a minor was involved.

In this case, Free Press Publishing owner Roger Harnack is seeking Washington State Patrol documents officially identifying two 17-year-olds who died in the crash, as well as the cause of the crash, and their manners and causes of death.

The driver believed to be at fault was the daughter of Allison Winingham Pasta, who is the petitioner seeking to prevent disclosure.

A preliminary report on the Feb. 9 fatal crash showed two teenagers — a boy and a girl — in a Toyota Camry crossed a highway center line and hit a tour bus head-on, killing themselves, the bus driver and a bus passenger. In addition, 18 other passengers on the bus were injured. Pasta’s daughter was driving the Camry.

The names of 18 crash victims were released; the patrol withheld the names of the teenagers as well as two younger juveniles injured on the bus. The patrol has not yet released a cause for the crash.

Harnack obtained the names through other means, but still sought official records after an extended delay.

Because the state patrol did not release all names or the cause of the crash after several days, Harnack filed a request to review the records. Initially the state patrol balked, but then decided there were no applicable exemptions and agreed to release the requested documents, including the names of the juveniles involved.

But before doing so, a state patrol employee called Pasta to inform her of the pending release.

On March 31, Pasta requested and was granted a temporary restraining order blocking the records from being released by Superior Court Judge Brian C. Huber. The order was set to expire May 3 and a hearing set for Friday, May 2.

When Friday’s hearing was over, Huber extended his previous temporary restraining order for at least an additional 30 days.

“If such written ruling has not been issued within thirty (30) days of the date of this Order Extending Temporary Restraining Order, any party may after the expiration of said thirty (30) day period file a motion and schedule a court hearing to address the status of this matter and request further relief,” Huber wrote in his order.

The Friday morning hearing included input from both Pasta and Harnack, as well as attorney Justin J. Kato representing the Washington State Patrol.

During the hearing, Judge Huber allowed Pasta to explain the reasons behind her request to prevent disclosure.

She cited several exemptions under state law that she believes are applicable. Those citations came in both her written petition and verbal comments.

Those citations included her belief the release was not in the public’s interest, and could cause emotional harm to the public and her other, younger daughter. She also said the state’s vital records law prevents disclosure due to privacy concerns.

In continuing, Pasta said some members of the community had threatened her family over the fatal crash.

In her filing, Pasta also claimed Douglas County Coroner Tanner Bateman had set a precedent for nondisclosure in his claim of personal discretion in the release of a public record.

In representing the state patrol, Kato said the agency was bound to release the records, as the exemptions Pasta cited could not be defended successfully in a court action.

Kato noted that the two-prong standard balancing privacy concerns and the public’s right to know had not been met.

“In the present matter, WSP has identified records that are responsive to Mr. Roger Harnack’s request that WSP believes are non-exempt and must be disclosed,” the attorney wrote in a brief filed on behalf of the law enforcement agency.

According to Kato, there is not a “free-standing exemption” for a third-party request to block disclosure, either.

He further noted that vital records and a “report of a vital life event” are different, and therefore the coroner did not have a valid exemption from disclosure.

Kato also tackled the issue of whether the law enforcement records could be withheld because the Washington State Patrol had not specifically completed its report on the cause of the crash. On that front, he noted, the information is releasable because the requested documents are not “essential” for law enforcement activities.

“Under the present circumstances, disclosure of the record would not interfere with any law enforcement investigation or activity,” he wrote.

State law requires any law enforcement records that are withheld to be “essential.” In this instance, the driver at fault was deceased, so the requested documents do not meet the nondisclosure threshhold.

Harnack’s written brief and oral comments mirrored much of Kato’s.

However, Harnack also questioned whether Pasta had “standing” to request the injunction, as she was not involved in the crash and that any possible right of privacy cannot be passed on to a family member.

He pointed out his belief that Pasta had not met the privacy standard, which requires records to be disclosed unless they were “highly offensive” and “not of legitimate concern to the public.”

“Both prongs must be satisfied,” he said, noting that three others were killed and 18 others injured proves there is in fact a legitimate public concern.”

Harnack addressed the privacy issue more intensely, suggesting to the court that Pasta’s family and that of another victim had waived any perceived privacy right by turning to an online crowd-funding website to solicit donations to help cover related costs. He also pointed out obituaries had been published in print and online, further identifying the teenagers publicly.

Harmack also argued state law requires release of decedents’ names within 48 hours of identification or notification of next of kin, whichever comes first. The state Public Records Act does not exempt juveniles.

Pasta, Kato and Harnack were each given additional rebuttals, which the judge said he will take into consideration.

In addition to the parties involved, a child advocate and Washington Coalition for Open Government Executive Director Colette Weeks were present to monitor the digital proceedings.