Prison Legal News, Inc., Petitioner, v. The Department of Corrections, Respondent, 154 Wash. 2d 628

¶1 Sanders, J. The diffusion of information and the arraignment of all abuses at the bar of public reason, I deem [one of] the essential principles of our government, and consequently [one of] those which ought to shape its administration. —Thomas Jefferson[] ¶2 We here consider whether identifying information in public records related to medical misconduct investigations in Washington prisons and patient information other than names or identification numbers are exempt from disclosure under the public disclosure act (PDA),

chapter 42.17 RCW. We hold that the Department of Corrections (DOC) must release the names of disciplined medical staff and of witnesses. Further, the PDA does not permit DOC to withhold all patient information in a blanket fashion, but DOC must demonstrate that each piece of health care information it seeks to withhold is readily identifiable with a patient. We remand to the trial court for this determination.

FACTS AND PROCEDURAL HISTORY ¶3 Paul Wright, a prisoner and editor for Prison Legal News (PLN), made seven requests for documents from DOC under the PDA. ¶4 PLN made the first request to DOC on January 21, 2000.

PLN requested (1) documents of all disciplinary actions against DOC medical providers by any licensing authority; (2) names of all doctors, nurses, physician assistants, and mental health providers DOC employed; (3) records related to DOC medical staff practicing with restricted or suspended licenses; (4) records of prisoner deaths in 1999; (5) records of prisoner deaths where medical negligence was a factor; (6) postmortem documents regarding prisoner deaths; and (7) records of staff and prisoner assaults requiring medical treatment from 1994 through 1999. ¶5 On January 25 Wright made a second PDA request.

Wright requested records of

(1) DOC medical providers who had been disciplined or fired, (2) names of disciplined staff members and the actions taken, and (3) names of DOC staff with arrest records. ¶6 On January 26 in response to the first request, DOC told PLN that it needed approximately 30 additional days to find and compile the requested documents.

On February 1, in response to the second request, DOC told PLN that it again required approximately 30 additional days to find and compile the requested documents. ¶7 On March 8 DOC made available to PLN (1) the names of medical staff members, (2) the number of inmate deaths in 1999, and (3) the quarterly intelligence reports.

DOC told PLN that it needed approximately 60 additional business days to respond to the records requests for (1) licensing actions related to DOC medical providers, (2) postmortem records concerning prisoner deaths, (3) disciplinary actions involving DOC medical providers, and (4) the names of DOC employees with arrest records. DOC also told PLN that DOC had no single postmortem document concerning prisoner deaths. ¶8 On May 30 DOC told PLN that one document would be disclosed and that other documents would be disclosed on June 21, unless an affected staff member sought to enjoin the disclosure.

DOC told PLN that it did not maintain records containing formal medical findings pertaining to prisoner deaths. ¶9 On June 20 DOC made available to PLN 11 pages of documents concerning DOC medical employees practicing with restricted licenses. DOC also made available 1,207 pages of investigative records pertaining to disciplinary action against DOC medical staff. DOC redacted names and other identifying information for both disciplined staff and witnesses (a category in which DOC included both accusers and investigating personnel as well as others) under RCW 42.17.310(1)(

d) and (e). DOC redacted the names of patients, as well as terms related to the health care or medical conditions of those patients, citing RCW 42.17.312 and RCW 70.02.020. ¶10 On July 30 PLN appealed to DOC to reverse its June 20 decision. On August 22 DOC told PLN that DOC affirmed its decision. On September 20 PLN wrote a check for $243.60 for copying costs, but PLN erroneously wrote the check to the secretary of state. DOC notified PLN of its error. PLN wrote another check and received the documents on October 20.

At this time DOC gave PLN a two-page chart showing the claimed statutory basis for redactions and nondisclosures. ¶11 PLN filed an action with the Thurston County Superior Court on May 11, 2001. A show cause hearing was held June 1. PLN alleged that DOC did not respond to PLN in a reasonable time and that various PDA exceptions claimed by DOC did not apply. ¶12 The trial court held that DOC did not violate the PDA, and the time it took to respond to PLN’s requests was reasonable. The court required DOC to produce a log specifying which exemption had been claimed for each nondisclosed document or redaction.

The court also stated that a second hearing could be requested if PLN and DOC could not negotiate the amount of specificity required regarding which exemption applied to each nondisclosure or redaction. PLN did not request a second hearing. ¶13 PLN appealed to the Court of Appeals, Division Two. The Court of Appeals upheld the trial court determination that the time in which DOC responded was reasonable and upheld DOC’s redactions of names and identifying information of patients, witnesses, investigators, accusers, and the accused, as well as redactions related to patient health care.

But the Court of Appeals reversed the trial court on DOC’s withholding of preliminary drafts, notes, recommendations, and opinions. The Court of Appeals ordered its commissioner to award attorney fees and costs incurred to obtain the latter documents but did not order that the statutory penalty be imposed. ¶14 PLN petitioned this court but only on the application of certain PDA exemptions and the failure of the Court of Appeals to award a statutory penalty. The State did not cross-petition the determination that it had wrongfully withheld preliminary drafts and notes. ANALYSIS I.

Statutory Framework ¶15 The PDA is a strongly worded mandate for broad disclosure of public records. Amren v. City of Kalama, 131 Wn.2d 25, 31, 929 P.2d 389 (1997). Washington’s PDA requires every governmental agency to disclose any public record upon request, unless the record falls within certain specific exemptions. O’Connor v. Dep’t of Soc. & Health Servs., 143 Wn.2d 895, 905, 25 P.3d 426 (2001). Any written information about government conduct is a public record, regardless of its physical form or characteristics. RCW 42-.17.020(36); Smith v. Okanogan County, 100 Wn. App. 7, 12, 994 P.2d 857 (2000). ¶16

Chapter 42.17 RCW provides, “(¡Judicial review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo.” RCW 42.17.340(3); Ockerman v. King County Dep’t of Dev. & Envtl. Servs., 102 Wn. App. 212, 216, 6 P.3d 1214 (2000). Moreover, where the trial court record consists only of affidavits, memoranda, and other documentary evidence, we stand in the same position as the trial court. Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994). ¶17 Courts construe the PDA broadly and its exemptions narrowly. Hearst Corp. v.

Hoppe, 90 Wn.2d 123, 129, 580 P.2d 246 (1978). The state agency bears the burden of proving that a specific exemption applies. RCW 42.17.340(1); Hoppe, 90 Wn.2d at 130. II.

Investigative Records Exemption ¶[18 The Court of Appeals held that the names of disciplined DOC medical staff and of witnesses (including inmates involved) could be withheld from the documents “pertaining to DOC medical employees currently employed by the DOC who are practicing with a restricted or suspended license” and from documents “pertaining to any DOC medical care providers that have been disciplined, fired, or otherwise sanctioned, with regards to the conduct of their duties in the provision of medical care to prisoners or staff.” DOC argued that the names of the disciplined employees were exempt from disclosure under RCW 42.17.310(1)(

d) and that the names of “victims” and “witnesses” were being withheld under both RCW 42.17-.310(1)(

d) and (e). However, the Court of Appeals appeared to have relied solely on RCW 42.17.310(1)(

d) to uphold DOC’s refusal to release this information. ¶19 RCW 42.17.310 exempts certain specific categories of information from public disclosure:

(1) The following are exempt from public inspection and copying: (

d) 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. (

e) 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 public disclosure commission, if disclosure would endanger any person’s life, physical safety, or property. . . . RCW 42.17.310(1)(d), (e). ¶20 Thus, under RCW 42.17.310(1)(

d) the “specific investigative records” must be compiled by a “law enforcement” or “penology” agency.

PLN does not dispute that DOC is a law enforcement or penology agency or that the records in question were “specific investigative records.”, ¶21 The investigative record must also be “essential to effective law enforcement.” Again, the burden is on DOC to prove that the records are essential to effective law enforcement, and the exemption must be construed narrowly. ¶22 DOC claims part of its law enforcement “mission” is “to provide for the health care needs of the state’s prison inmates.” Answer to Pet. for Review at 9.

DOC also claims disclosure of the names of disciplined employees and witnesses, including accusers, would endanger the safety and security of DOC’s staff and inmates.

Id. ¶23 DOC’s specific factual allegations are (1) if the names of disciplined staff are released, those staff will be at risk of reprisal from inmates for the conduct that resulted in their discipline (Clerk’s Papers (CP) at 1433-34, 1446); (2) disciplined staff could also be blackmailed by inmates into illegal acts, such as providing prescription medication which is not medically necessary, or into violating prison rules (CP at 1434, 1446-47); (3) disciplined staff might be subject to “ridicule, retaliation, and distrust by other staff members” (CP at 1435); (4) confidentiality of “employees or offenders involved in an investigation of staff misconduct” (all “witnesses” under DOC’s classification) is necessary to investigate such misconduct because if staff and offender names were released to the public, offenders and staff would be less likely to report misconduct (CP at 1433, 1446); (5) “inmate confidential informants” of staff medical misconduct would have to be segregated from the general population and be placed in “permanent protective custody” if their names were released (CP at 1433); and (6) disclosure of the names of disciplined staff could lead to refusal by inmates to be treated by that staff person, or to potential medical staff choosing not to work in a DOC facility, both circumstances that DOC claims will result in making it more difficult to provide inmates with health care (CP at 1435, 1447-48).

These claims were made in declarations by Eldon Vail, deputy secretary of DOC, Jane Robinson, health care manager for McNeil Island Corrections Center, and Elizabeth Anderson, health care administrator for DOC. ¶24 Some of these claims appear questionable on their face. Prevention of mistreatment of disciplined staff by fellow employees is within the control of DOC. Similarly, it is hard to see how the confidential informant or complaining inmate would be at risk from other inmates because they provided information concerning staff misconduct.

And we do not believe DOC suggests inmates who complain about staff must have their identities protected so that staff won’t retaliate against inmates. Preventing the latter scenario is again within the control of DOC, and the only person to whom the inmate can complain is another staff member.

Thus, whether or not the PDA exempts the names of complaining inmates from disclosure, it would appear to be a nonissue regarding retaliation from staff members who already know, or whose colleagues know, the identity of the complaining inmate. ¶25 The dissent appears to accept DOC’s unsupported contention that staff will retaliate against inmates for reporting staff misconduct. Dissent at 652, 655. The dissent’s approach would have the perverse result of failing to deter staff misconduct by keeping secret the identity of staff who have harmed prisoners through medical misconduct.

The dissent would reward DOC’s failure to prevent staff misconduct with secrecy in order to avert additional staff misconduct. ¶26 The other factual claims are not invalid on their face, but the validity of the factual claims, and thus whether disclosure of such names could have potentially negative effects within the prison, is not the issue. The issue under the plain language of the relevant statute is whether it is “essential to effective law enforcement” to prevent such effects.

This determination turns on the definition of “effective law enforcement,” or even more specifically, “law enforcement.” ¶27 DOC claims “law enforcement” must be defined very broadly: “the legal, safe, secure and orderly operation of its prisons.” Br. of Resp’t (Ct. App. No. 28771-4-II) at 21, 23. DOC’s proposed definition ignores the command of our prior case law that exemptions to the PDA be construed narrowly. Hoppe, 90 Wn.2d at 129.

Were we to accept DOC’s definition, investigations of all aspects of DOC’s operations would be off limits from public disclosure and only by accepting DOC’s invitation to define every activity it undertakes as “law enforcement” can we uphold the lower court.

But neither providing patient care to DOC inmates nor disciplining medical employees is “law enforcement” as that term is commonly understood. ¶28 The PDA itself does not define “law enforcement” or state what is “essential” for such enforcement to be “effective.” “Words of a statute not particularly defined are to be given their ordinary, everyday meaning.” New York Life Ins. Co. v. Jones, 86 Wn.2d 44, 47, 541 P.2d 989 (1975). ¶29 In Brouillet v.

Cowles Publishing Co., 114 Wn.2d 788, 791 P.2d 526 (1990), we turned to Black’s Law Dictionary, stating that “[l]aw enforcement involves ‘[t]he act of putting . . . law into effect; . . . the carrying out of a mandate or command.’ ” Brouillet, 114 Wn.2d at 795 (quoting Black’s Law Dictionary 474 (5th ed. 1979)). We also stated that “[l]aw enforcement involves the imposition of sanctions for illegal conduct.” Id. at 796. And the current edition of Black’s Law Dictionary has an even more succinct definition: “The detection and punishment of violations of the law.” Black’s Law Dictionary 901 (8th ed. 2004).

According to these

definitions the investigations by DOC into medical misconduct were not conducted for purposes of “law enforcement,” and therefore the information which DOC seeks to exempt could not be “essential for effective law enforcement.” ¶30 Brouillet supports this conclusion. Brouillet concerned a request for the release of records showing the reasons for teacher certificate revocations. This court focused on the fact that the Office of the Superintendent of Public Instruction (SPI) did not enforce law; SPI administered a school system. Brouillet, 114 Wn.2d at 795. ¶31 Other cases interpreting RCW 42.17.310(1)(

d) reinforce a narrow definition of “law enforcement” requiring the subject of the investigation be law enforcement. In Newman v. King County, 133 Wn.2d 565, 573, 947 P.2d 712 (1997), this court focused on records that would “jeopardize criminal investigations” in analyzing whether a document was essential to effective law enforcement. In Columbian Publishing Co. v. City of Vancouver, 36 Wn.

App. 25, 671 P.2d 280 (1983), Division Two of the Court of Appeals focused not on the fact that a law enforcement agency was investigated, or that law enforcement personnel would have their identities disclosed, but rather that the investigation of job performance would not result in criminal sanction and thus was not essential to effective law enforcement. Id. at 30-31. ¶32 DOC relies on Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597 (1988) and Tacoma News, Inc. v. Tacoma-Pierce County Health Department, 55 Wn. App. 515, 778 P.2d 1066 (1989).

Cowles was a plurality opinion in which the court held that the State Patrol could withhold the names of officers against whom internal investigations had sustained complaints, along with names of the complaining parties and witnesses in those cases. The plurality reasoned that a functioning internal investigation process was “required” for effective law enforcement. Cowles, 109 Wn.2d at 729. It specifically stated that “[s]uch a procedure is necessary to ensure that law enforcement officers do not abuse their authority or engage in unlawful activities.” Id. (emphasis added).

Of course, while the malpractice of medical personnel may at times reach criminal proportions, the DOC investigations were not conducted to investigate criminal wrongdoing but as a matter of personnel administration. CP at 1447, 1450 (Vail declaration). ¶33 Additionally, the Cowles court focused on the fact that witnesses and complaining parties would be less likely to come forward or participate in the internal investigations if their identities were known.

But this concern, as noted above, is of lower weight when the potential “retaliation” threat to participants in the process is not the threat from a rogue police officer, but from a nurse or physician’s assistant, and DOC authorities have control over their institutions and the interactions between staff accused of wrongdoing and other staff members and prisoners who are complainants or witnesses. ¶34 As in Cowles, in Tacoma News the court adopted a narrower definition of “law enforcement” than that urged by DOC.

The court made its determination based on “what information, if disclosed, would render ineffective the Health Department’s enforcement of laws and regulations.” Tacoma News, 55 Wn. App. at 521. The Tacoma News Tribune had requested copies of written complaints relating to an investigation of the quality of the care provided by a particular Pierce County ambulance service. Although the narrow definition of “law enforcement” is most important for our purposes, it is noteworthy that the court made a detailed inquiry into the withheld information.

The court allowed the health department to withhold the names of complainants and witnesses but ordered disclosure of the name of the ambulance company investigated (the subject in the same position as the DOC medical employees in the present case). ¶35 The dissent would focus on the role of the agency, rather than the function of the investigation.

The dissent’s approach conflates the “law enforcement or penology agency” prong of the test with the “essential to effective law enforcement” prong. ¶36 Under the dissent’s reasoning, which echoes arguments put forward by DOC, no internal investigation of any facet of running a prison would be subject to disclosure.

Because DOC could claim that disclosure of any misfeasance or malfeasance by prison staff could potentially affect DOC’s ability to “ ‘ “preserve the peace” ’ of staff and inmates” or affect the secure and orderly operation of its prisons, all investigations which could cause the least disruption of the prison’s operation would be exempt from disclosure. Dissent at 652 (quoting McLean v. Dep’t of Corr., 37 Wn. App. 255, 258, 680 P.2d 65 (1984)); Br. of Resp’t, supra note 12. Thus, under the dissent’s view, the third prong of the test explicitly provided for in statute would be meaningless.

Since the DOC alleges that all aspects of the “secure and orderly operation of its prisons” are “essential to effective law enforcement,” ipse dixit all investigations of the operation of its prisons are exempt from disclosure. ¶37 Had the legislature determined that all investigations potentially affecting operation of a penology agency would be exempt from disclosure, the legislature would surely have used more direct language.

Indeed, the legislature could have simply eliminated the requirement that records of such investigations be “essential to effective law enforcement.” “Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous.” Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996) (citing Stone v. Chelan County Sheriff’s Dep’t, 110 Wn.2d 806, 810, 756 P.2d 736 (1988); Tommy P. v.

Bd. of County Comm’rs, 97 Wn.2d 385, 391, 645 P.2d 697 (1982)). ¶38 We reject DOC’s proffered definition of “law enforcement” and hold that nondisclosure is not “essential to effective law enforcement.” DOC must release the unredacted investigative records. III. Health Care Information ¶39 DOC also redacted all references to medical information concerning inmates, including names, treatments, medical conditions, etc. The basis for these redactions was RCW 70.02.020, as incorporated into the PDA through RCW 42.17.312.

RCW 70.02.020 prohibits disclosure of “health care information” without the patient’s written authorization. “Health care information” is defined as: [A]ny information, whether oral or recorded in any form or medium, that identifies or can readily be associated with the identity of a patient and directly relates to the patient’s health care, including a patient’s deoxyribonucleic acid and identified sequence of chemical base pairs. The term includes any record of disclosures of health care information.

RCW 70.02.010(6) (emphasis added). ¶40 Washington courts have recognized the definition of “health care information” has “two requisites — patient identity and information about the patient’s health care.” Wright v. Jeckle, 121 Wn. App. 624, 630, 90 P.3d 65 (2004). On its face the statute appears to allow for disclosure of information such as maladies, treatments, etc., when the identity of a patient is not disclosed or cannot be readily associated with the patient.

PLN has not contested the nondisclosure of patient names or identification numbers. f41 DOC contends that such information can readily be associated with the identity of a patient. In its briefing, DOC claims that “inmates who are in close and continuous contact with each other . . . would be able to associate the information to a particular inmate.” Suppl. Br. of Resp’t at 15. However, DOC has not cited to any evidentiary support for this conclusion in the record. 142 As noted, we construe exemptions to the PDA narrowly, requiring the state agency to bear the burden of proving that a specific exemption applies.

RCW 47.17-.340(1); Hoppe, 90 Wn.2d at 129-30. The DOC’s blanket approach in redacting all health care information conflicts with the requirement to construe exemptions narrowly. Further, the broad mandate favoring disclosure under the PDA requires the agency demonstrate that each patient’s health care information is “readily associated” with that patient in order to withhold the health care information under RCW 70.02.010(6).

Where there is a dispute over whether health care information is readily identifiable with a specific patient even when that patient’s identity is not disclosed, the trial court can use in camera review should it need to examine unredacted records to make its independent determination. See, e.g., ACLU of Wash. v. City of Seattle, 121 Wn. App. 544, 89 P.3d 295 (2004). ¶43 The Court of Appeals did not decide this issue on the statutory language. Its only comment about DOC’s claims was that they were “plausible.” Prison Legal News v. Dep’t of Corn, noted at 118 Wn. App. 1069, 2003 WL 22332994, at *8, 2003 Wash. App.

LEXIS 2349, at *22-25. However, the court applied an equity/exhaustion argument to deny PLN disclosure. ¶44 At the end of a very confused oral argument, the trial court judge told the parties: I see a big distinction between records entirely withheld and records redacted. And if the parties cannot agree on a process for handling those, then it can be brought back to the court and I’ll consider arguments of both sides. ... If you can agree, fine; if you can’t, then I guess I will lead a second round of hearing to resolve the issues that you’ve identified that are arising out of my decision here.

Report of Proceedings (RP) at 40-41. ¶45 The trial court judge was not clear which “claims of exemptions” (CP at 1520; RP at 37) he was referring to in this conclusory statement, nor whether he was allowing PLN to contest specific redactions based on whether those redactions were within the scope of the trial court’s general rulings on the validity of the claimed exemptions. However, the Court of Appeals characterized this exchange as offering PLN an opportunity to “clarify the issue,” Prison Legal News, 2003 Wash. App. LEXIS 2349 at *22-25, 2003 WL 22332994, at *8.

The Court of Appeals then refused to address whether DOC “redacted more than was necessary to protect the patient’s identity’ when PLN “chose not to pursue it.” Id. ¶46 The Court of Appeals did not accurately characterize the trial court’s concluding offer at the show cause hearing.

The trial court’s statement actually appeared to give PLN an opportunity to challenge whether certain records, based on certain exemptions, should have been withheld in their entirety or whether they should have been disclosed in redacted form. ¶47 This would not have been reasonably interpreted by PLN’s counsel as a chance to argue that specific health care information should have been disclosed because it was not readily identifiable with a patient.

Indeed, since all such information had been redacted, along with the patient identity, it is hard to see how the PLN attorney could have discovered which information was or was not readily associated with a patient’s identity. |48 PLN did not forfeit the right to contest whether specific health care information was readily identifiable with specific patients given a proper

interpretation of the trial court’s statement. We hold that on remand DOC must prove that each patient’s health care information would be readily identifiable with that patient even if that patient’s identity isn’t known, given that PLN has not contested the nondisclosure of patient names or identification numbers. IV.

Statutory Penalties and Attorney Fees [11] ¶49 RCW 42.17.340(4) states: Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action.

In addition, it shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he was denied the right to inspect or copy said public record. ¶50 PLN, as the prevailing party in this action, is entitled to its costs and reasonable attorney fees. ¶51 The Court of Appeals did not award a statutory penalty or remand to the trial court for imposition of a statutory penalty.

This court recently decided the PDA requires the imposition of a penalty, but the amount of the penalty (within statutory limits) is in the first instance determined by the trial court after proper consideration of the circumstances. Yousoufian v. Office of King County Executive, 152 Wn.2d 421, 98 P.3d 463 (2004). Thus on remand the trial court is directed to determine the amount of statutory penalties. CONCLUSION ¶52 “Secrecy in government is fundamentally antidemocratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health.” New York Times Co. v.

United States, 403 U.S. 713, 724, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971) (Douglas, J., concurring). Neither providing patient care to DOC inmates nor disciplining medical employees is “law enforcement” within the meaning of the PDA. Whether health care information is readily identifiable with a patient must be determined on a case-by-case basis with regard to each specific patient. Should DOC continue to claim that the health care information of certain specific patients is readily identifiable with those patients, the trial court must review those specific exemption claims on remand.

We also remand to the trial court to determine the amount of attorney fees and expenses for all proceedings to date plus the amount of statutory penalties. Alexander, C.J., and Madsen, Bridge, Chambers, and Owens, JJ., concur. Thomas Jefferson on Politics & Government (quoting 1st Inaugural Address, 1801. ME 3:322 (alterations in original)) (on digital archive at the University of Virginia, The Jefferson Literary & Debating Society), available at http://etext .lib.virginia.edu/jefferson/quotations/jeffl350.htm.

The parties agree that the collective bargaining agreement then in place allowed affected employees to seek such an injunction. DOC, in its letter to PLN, stated: “The redacted information includes the names of the disciplined employees, the names of the inmates involved, the names of all witnesses and pronouns referring to those witnesses, identifying locations, and identifying dates. In addition, specific medical information was redacted per RCW 70.02.050.” Clerk’s Papers (CP) at 172-73. CP at 172, 158.

CP at 173, 181. “Records are ‘specific investigative records’ if they were ‘compiled as a result of a specific investigation focusing with special intensity upon a particular party.’ ” Dawson v. Daly, 120 Wn.2d 782, 792-93, 845 P.2d 995 (1993) (quoting Laborers Int’l Union, Local 374 v. Aberdeen, 31 Wn. App. 445, 448, 642 P.2d 418 (1982)). The Washington Coalition for Open Government (WCOG) now urges in its amicus brief before the Supreme Court a different approach from either the parties or the WCOG amicus brief before the Court of Appeals.

WCOG argues that the records in the case at bar were not “investigative records” under RCW 42.17.310(l)(d). While the WCOG argument is inventive, it narrows the definition beyond plain meaning of the statutory term. This court, in Dawson v. Daly, stated: Records are “specific investigative records” if they were “compiled as a result of a specific investigation focusing with special intensity upon a particular party.” 120 Wn.2d at 792-93 (quoting 31 Wn. App. at 448). This

interpretation has not been challenged by the parties. WCOG would add an element to the term “investigative records,” implying the requirement that the investigation be statutorily mandated. Thus, only records of statutorily mandated “investigations” would qualify as investigative records. But the statute simply doesn’t say “records for investigations mandated by statute.” It says “specific investigative records compiled by investigative, law enforcement, and penology agencies . .. .” RCW 42.17.310(1)(d). “[A] statute which is clear on its face is not subject to judicial

interpretation ....” In re Marriage of Kovacs, 121 Wn.2d 795, 804, 854 P.2d 629 (1993). The plain meaning of “investigative” counters WCOG’s argument. “Investigate” is defined by Webster’s as “to observe or study closely: inquire into systematically .. ..” Webster’s Third New International Dictionary 1189 (2002). There is no element of legislative mandate in the dictionary definition of the term. Further, it would lead this court in future cases to try and determine whether an “investigation” is required by statute.

This would lead to endless analysis of broad statutory grants of authority to agencies to determine whether a particular “investigation” is within the scope of such delegation. Finally, case law conflicts with WCOG’s definition. Nothing in the statute mandates that police departments have internal investigations divisions, yet those records were held to be “investigative records” in Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597 (1988). DOC did not claim that the names could be withheld under the other possible exemption in this subsection, the protection of a person’s right to privacy.

RCW 42.17.340(1); Hoppe, 90 Wn.2d at 130. Hoppe, 90 Wn.2d at 129. The dissent’s discussion of Brouillet focuses on the role of the agency, but the Brouillet majority first focused on the function of the investigation. “An examination of the term ‘law enforcement’ reveals that certificate revocation involves neither criminal nor civil law enforcement.” Brouillet, 114 Wn.2d at 795 (emphasis added).

DOC admits that if this definitional requirement were adopted, its investigations into medical misconduct would not meet the definition. “DOC does not contend that the investigations themselves are ‘law enforcement’ investigations, but the release of the names and identifying information of witnesses and disciplined staff interferes with DOC’s law enforcement mission; namely the legal, safe, secure and orderly operation of its prisons.” Br. of Resp’t DOC (Ct. App. No. 28771-4) at 23.

The dissent again focuses on the role of the agency, rather than the purpose of the investigation, alleging that we “mischaracterize [ ]” the case. Dissent at 654. However, the Court of Appeals in Columbian Publishing focused on the purpose of the investigation (“[tjhis is purely a personnel matter," 36 Wn. App. at 31), in spite of the fact that the records in that case were produced by law enforcement personnel and were obviously intended to improve the functioning of the police department, a law enforcement agency.

The dissent’s quotation of the immediately preceding sentence in Cowles omits the Cowles court’s explicit holding as to why a “ ‘workable reliable procedure for accepting and investigating complaints against law enforcement officers’ ” is needed. Dissent at 655 (quoting Cowles, 109 Wn.2d at 729). See discussion, supra. But of note is that even were we to accept the dissent’s truncated characterization, the investigation of police performing the functions of their jobs is an investigation of law enforcement.

Only by accepting the dissent’s and DOC’s overly broad characterization of all prison operations as “law enforcement” can Cowles be seen as remotely analogous. Before the Court of Appeals, DOC also claimed that RCW 42.17.310(1)(

e) provided an additional ground for refusing to release the names of “complainant witnesses.” Br. of Resp’t (Ct. App. No. 28771-4-II) at 32. The Court of Appeals, while citing the statute in its description of the parties’ arguments, did not analyze the nondisclosure under this section. See Prison Legal News, Inc. v. Dep’t of Corr., noted at 118 Wn. App. 1069,2003 WL 22332994, at *5-6,2003 Wash. App. LEXIS 2349, at *13-19. Perhaps this was because DOC specified that only the names of complainant witnesses were -withheld under RCW 42.17.310(1)(e), see Br. of Resp’t DOC (Ct. App.

No. 28771-4-II) at 33 n.7, and the Court of Appeals found those persons covered by RCW 42.17.310(1)(d). Neither party has analyzed this issue in its briefing before this court. On its face RCW 42.17.310(1)(

e) only protects the identity of witnesses to or victims of “crime,” not the medical misconduct at issue in the current case. Perhaps some of that misconduct might have risen to the level of a crime, but DOC has not identified any such misconduct. RCW 42.17.312 states, “Chapter 70.02 RCW applies to public inspection and copying of health care information of patients.” DOC also claims that PLN could “cross reference” a list of deceased inmates it has been provided with medical information to determine patient identity. Suppl. Br. of Resp’t at 15.

However, DOC does not even make a plausible attempt to demonstrate how, with only the names of deceased inmates and the descriptions of medical care provided in records of medical misconduct, it could connect the names to the maladies. Presumably a person trying to do this would already have to know the malady from which the inmate died. In any case, the additional information needed to have any possibility to connect these dots would not appear to make the identity “readily associated” with the information that directly relates to the patient’s health care, as required by the statute.

After the show cause hearing, DOC did produce a lengthy chart identifying the specific exemption DOC claimed for each redaction or withheld document. This was attached to the order ending the case. CP at 1526-2119. As the trial judge stated, “the parties and this court agreed that we would first address generally the availability and scope of the exemptions claimed by the Department of Corrections here without making them records specific, and we’ve undertaken that process.” CP at 1510 (RP at 27).

In response to the exemption rulings from the bench, counsel for PLN stated, “part of what we would be seeking would be a clearer relationship between these exemptions and the actual redactions made.” CP at 1521 (RP at 38). Counsel was clearly stating that a determination would have to be made as to which of the several claimed exemptions — not just the health care exemption— DOC was applying to the redacted text. The trial court then inquired whether DOC had identified which exemptions were applied to records it had disclosed but redacted and which had been applied to records not disclosed.

CP at 1521 (RP at 38). After a discussion of whether the documents were centrally located, the trial judge suggested the department identify which records were redacted or withheld under which exemptions. CP at 1522-23 (RP at 39-40). In response, DOC produced a chart. Supra note 18. The context of this entire discussion involved categorizing redacted and withheld records according to the possibly applicable exemptions. It did not focus, as the Court of Appeals indicated, on whether documents withheld under the medical records exemption were identifiable with specific patients.

And the follow-up hearing offered was to resolve whether it would be too “onerous” on DOC to identify the specific exemption applied to each record: How onerous is it upon the defendant to be required to identify all withheld records and redactions to a specific claim of exemption? And that’s to be discussed; that’s one extreme. The other extreme is no identification at all other than what you’ve already done, and then there may be some middle ground that may satisfy folks as well.

If you can agree, fine; if you can’t, then I guess I will lead a second round of hearing to resolve the issues!.] CP at 1523 (RP at 40). The follow-up hearing was not offered specifically regarding the medical exemption, as indicated by the Court of Appeals. And since, as noted above (note 18) DOC produced a chart showing which exemption applied to which redaction or withheld record, no follow-up hearing was required. See RAP 18.1(i).