The police guild wants to rewrite the Public Records Act in the courts

By appealing its lawsuit against DivestSPD, SPOG is attempting to bypass the state legislature and create new exemptions for officers accused of serious misconduct.

A legal appeal by the Seattle Police Officers Guild could radically expand exemptions for police officers under the Washington Public Records Act. If the guild wins its case, now being heard in the state appeals court, officers’ identities will be categorically exempted from disclosure if disciplinary bodies exonerate them from allegations of four types of misconduct.

Currently, sexual offenses are the only type of misconduct treated this way. Courts must review all other requests for non-disclosure on a case-by-case basis. SPOG is attempting to seek special treatment, arguing that allegations of racism, retaliation, corruption, and dishonesty are as “highly offensive [as] sexual misconduct” to police officers.

This legal action dates back to 2023, when SPOG sued to block a request by DivestSPD seeking records of disciplinary investigations against Seattle Police Detective Ashley Fitzgerald. A man Fitzgerald had arrested filed a barrage of false, retaliatory complaints against her, including allegations of sexual harassment and drug trafficking. All the complaints were deemed unfounded.

SPOG won. In 2024, the King County Superior Court ordered the City of Seattle to redact Fitzgerald’s name on any documents released to us. However, SPOG’s lawsuit had an ulterior motive. Fitzgerald’s case was only an opportunity to seek a declaratory judgment that all future cases involving the four allegations listed above would be redacted if they were determined to be unsubstantiated.

In a filing, SPOG’s attorneys acknowledged that protecting Fitzgerald’s privacy was secondary, and that the primary goal was to avoid “having to continue spending its Members’ hard-earned dues, to protect its Members’ privacy rights.” They further argued that if their funds weren’t tied up fighting public records cases, SPOG could spend more money on lobbying.

The City of Seattle countered in its brief that SPOG’s argument failed on multiple fronts. The privacy exemption in the Public Records Act has two prongs. To be exempt, the material must be “highly offensive to a reasonable person” and “not of legitimate concern to the public.”

SPOG’s argument rests on the idea that police are unique, and the four allegations are particularly offensive to officers. But as the City points out, the statute’s language refers to “a reasonable person,” not “a reasonable officer.”

The City wrote: “SPOG seeks a declaratory judgment stating that an unsubstantiated allegation of racism is exempt when made against a police officer, but not exempt when made against a judge, a prosecutor, a public defender, a court clerk, or victim advocate, all of whom are employees whose employment records are subject to some degree of production under the PRA.”

Moreover, even if the court were to grant that those allegations are “highly offensive,” it would still need to deal with the other prong of the test. Unsubstantiated allegations may still be of interest to the public.

For example, the underlying facts may be true, but disciplinary bodies may find that they did not amount to misconduct. In a 2015 case, courts ruled that the identities of high-ranking officers accused by their subordinates qualified as a legitimate public interest and were not exempt.

There are also instances where disciplinary bodies sustain some allegations, such as unprofessionalism, but not the more serious ones that SPOG hopes to block from disclosure.

Case in point: Seattle Police Officer Andrew Marks called a Black officer a “thug” for showing up in normal workout clothing. Despite the obvious racial overtones, the Office of Police Accountability did not sustain racial bias allegations, but he was suspended for unprofessional behavior.

Many cases at the Seattle Police Department involving racism, dishonesty, corruption, and retaliation are not sustained because of the high standard of evidence for “stigmatizing” offenses established in the SPOG contract. This issue is currently headed for interest arbitration, but we do not know how or when it will be resolved. Under the contract, these cases must be investigated by sergeant detectives who are all SPOG members.

These allegations, accounting for about one in 10 misconduct cases, would be shrouded in secrecy from start to finish. They would be treated like sexual misconduct cases and restricted, so we couldn’t track them. And when they resulted in “inconclusive” findings because the OPA couldn’t meet the unreasonably high burden of evidence, the officers’ names would be hidden from the public forever.

Fortunately, the Washington courts have consistently erred on the side of public interest and disclosure in cases like this. Still, the stakes are high. If SPOG wins, the public and police oversight lose.