David Koenig, Respondent, v. Thurston County et al., Petitioners, 175 Wash. 2d 837

Madsen, C.J. ¶1 David Koenig and Thurston County seek review of a decision by the Court of Appeals holding that a special sex offender sentencing alternative (SSOSA) evaluation may be disclosed under the Public Records Act (PRA),

chapter 42.56 RCW, but a victim impact statement may not. The Court of Appeals found that both the SSOSA evaluation and the victim impact statement are investigative records. The court then determined the victim impact statement is exempt under the essential-to-effective-law-enforcement prong of the investigative records exemption but concluded the SSOSA evaluation was not exempt. ¶2 We hold neither the SSOSA evaluation nor the victim impact statement is an investigative record within the meaning of RCW 42.56.240. Accordingly, we reverse in part and affirm in part.

FACTS ¶3 In July 2000, James Lerud pleaded guilty in Thurston County Superior Court to eight counts of voyeurism. The plea agreement included a SSOSA recommendation and a psychological evaluation prepared in connection with that recommendation. The purpose of a SSOSA evaluation is to determine whether a sex offender is amendable to treatment and can be safely treated in the community. Before sentencing, one of Lerud’s victims submitted a victim impact statement.

A victim impact statement is a statement made by a victim regarding the extent of harm caused by a criminal defendant “at sentencing and at any proceeding where the defendant’s release is considered.” Const, art. I, §35. ¶4 On August 17, 2000, David Koenig sent a PRA request to the Thurston County Prosecuting Attorney’s Office seeking files concerning Lerud’s prosecution, including witness statements, victim impact statements, and any and all associated documents or affidavits. Koenig sent a similar request to the Thurston County Superior Court Clerk’s Office.

The clerk’s office invited Koenig to come to the courthouse to view Lerud’s case file and also informed him that a motion to seal particular documents in the file would be heard the following week. After the hearing on the motion to seal, the trial court ordered the victim impact statement and Lerud’s medical and psychological reports, including the SSOSA evaluation, to be sealed from public disclosure in order to protect the victim’s and Lerud’s privacy. ¶5 Subsequently, the prosecutor provided Koenig with a document package that excluded the victim impact statement and SSOSA evaluation.

The prosecutor believed the victim impact statement and SSOSA evaluation to be exempt from disclosure because of their sensitive nature and the trial court’s ruling to seal the documents. ¶6 On September 3, 2004, Koenig filed a public disclosure complaint against Thurston County and the prosecuting attorney. Then, on August 30,2007, he moved for partial

summary judgment on the issue of whether the SSOSA evaluation and victim impact statement were exempt from public disclosure. The trial court ruled that the victim impact statement and SSOSA evaluation were exempt under RCW 42.56.240(1) and rejected Koenig’s motion. The parties stipulated that the trial court’s order to seal the documents was not binding on Koenig and did not restrict the prosecutor’s disclosure of the documents under the PRA. ¶7 The Court of Appeals found the victim impact statement exempt and the SSOSA evaluation nonexempt. We granted Thurston County’s petition for review.

ANALYSIS ¶8 We review an agency’s action under the PRA de novo. RCW 42.56.550(3). An appellate court stands in the same position as the trial court where the record consists only of affidavits, memoranda, and other documentary evidence. Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 252, 258, 884 P.2d 592 (1994) (PAWS II).

Because the relevant portions of the record consist of declarations submitted by Thurston County, this court stands in the same position as did the trial court. ¶9 It is well settled that a reviewing court interprets the disclosure provisions of the PRA liberally and exemptions narrowly. Id. at 251. RCW 42.56.550(3) dictates that “[c]ourts shall take into account the policy of this

chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others.” The agency claiming the exemption bears the burden of proving that the documents requested fall within the scope of the exemption. Cowles Publ’g Co. v.

Spokane Police Dep’t, 139 Wn.2d 472, 476, 987 P.2d 620 (1999). ¶10 Thurston County argues that the victim impact statement and SSOSA evaluation are exempt under the investigative records exemption, RCW 42.56.240, which provides in relevant part: The following investigative, law enforcement, and crime victim information is exempt from public inspection and copying under this chapter:

(1) 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. ¶11 The investigative records exemption is designed to protect the integrity of law enforcement investigations. See Spokane Police Dep’t, 139 Wn.2d at 478.

To be exempt under this provision (1) the record must be investigative in nature; (2) the record must be compiled by an investigative, a law enforcement, or a penology agency; and (3) it must be essential to law enforcement or essential to the protection of privacy. See Cowles Publ’g Co. v. Wash. State Patrol, 109 Wn.2d 712, 728, 748 P.2d 597 (1988). In particular, 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 of N. Am., Local No. 374 v. City of Aberdeen, 31 Wn. App. 445, 448, 642 P.2d 418 (1982)), overruled on other grounds by PAWS II, 125 Wn.2d at 257-58. The investigation must be “one designed to ferret out criminal activity or to shed light on some other allegation of malfeasance.” Columbian Publ’g Co. v. City of Vancouver, 36 Wn. App. 25, 31, 671 P.2d 280 (1983). ¶12 In Dawson, the documents at issue were compiled by the Snohomish County Prosecutor’s Office for use in cross-examining Mr.

Daly, an expert witness who frequently testified as a defense witness in child sexual abuse cases prosecuted by Snohomish County. 120 Wn.2d at 787-88. The county argued that these documents were protected by the investigative records exemption. Id. at 792. In rejecting the county’s claim, we held the prosecutor failed to demonstrate that Daly was being investigated for criminal activity or “ ‘other malfeasance’ ” or that the records concerning Daly contain any intelligence information. Id. at 793. Accordingly; we held that these records were “not of the type protected” by the exemption.

Id. ¶13 This analysis yields the same result with regard to the documents in this case. Victim Impact Statement ¶14 Washington State Constitution

article I,

section 35 and RCW 7.69.030 grant the victims of crime and their survivors a significant role in the criminal justice system. See State v. Gentry, 125 Wn.2d 570, 624, 888 P.2d 1105 (1995) (discussing legislative history and purpose of victim impact statement). A victim impact statement is a vehicle for a victim to exercise her constitutional and statutory right to address the trial court before it imposes sentence.

A victim impact statement gives victims an independent voice and direct access to the court. ¶15 A victim impact statement is properly understood as a communication between a victim and the court, not as an investigative record compiled by an investigative, a law enforcement, or a penology agency. In State v. Carreno-Maldonado, 135 Wn. App. 77, 86, 143 P.3d 343 (2006), the court discussed the victim’s control over victim impact statements:

Article I,

section 35 and RCW 7.69.030 give the victims the right to speak or not speak on their own behalf. But they do not provide the State with the right to speak for the victims when they have decided not to speak and have not requested assistance in otherwise communicating with the court, such as by presenting a victim impact statement. Here, the victims were present and able to speak or ask for the prosecutor’s assistance if they so desired.

The record does not show that the victims asked the prosecutor to serve as their proxy, either by speaking on their behalf, by reading a victim impact statement they had prepared, or by giving the court specific documents supporting a request for restitution. ¶16 Similar to the situation in Dawson, the county here has not demonstrated that the victim impact statement contains “specific intelligence information” and the county points to nothing in the victim impact statement that relates to “ferreting out” criminal activity or other allegations of misfeasance.

A victim impact statement is not an “investigative record” as that term is understood in our cases. ¶17 Thurston County argues, though, that the victim impact statement serves an additional investigatory function in helping the prosecutor and the court determine the seriousness of the crime for sentencing purposes. See RCW 9.94A.010(1), .500(1). The county likens the victim impact statement to the mitigation package submitted in Cowles Publishing Co. v. Pierce County Prosecutor’s Office, 111 Wn. App. 502, 45 P.3d 620 (2002). In Pierce County Prosecutor’s Office, 111 Wn.

App. at 508, a mitigation expert submitted a mitigation package on behalf of a defendant to assist a prosecutor in deciding whether to seek the death penalty. The prosecutor relied on the mitigation package to investigate the defendant’s background and family as part of a larger investigation into an appropriate penalty. Id. The court noted that whether the investigative records exemption applied to protect the mitigation package hinged on showing both that the record was compiled by law enforcement and that it was investigative in nature. Id.

The court concluded the mitigation package satisfied both requirements. Id. According to Thurston County, the victim impact statement here is analogous to the mitigation package because both are used to determine the appropriate penalty for a criminal defendant. ¶18 We do not see the similarity between a mitigation package, presented pretrial for the purpose of assisting the prosecutor in deciding whether to seek the death penalty by filing a notice of special proceedings, and a victim impact statement.

Once a person is charged with aggravated first degree murder, a prosecutor may seek the death penalty by filing and serving a notice of special sentencing proceedings within 30 days after the defendant’s arraignment. RCW 10.95.040(2). A notice of special proceedings may be filed only when there is reason to believe there are not sufficient mitigating circumstances to merit leniency. RCW 10.95-.040(1). The prosecutor is empowered with substantial discretion and autonomy in making the determination to seek a sentence of death. State v. Dictado, 102 Wn.2d 277, 297-98, 687 P.2d 172 (1984).

To make the decision, the prosecutor must be free to investigate a defendant’s background and family, and the evidence in the case without being influenced by public opinion and scrutiny. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). ¶19 The decision to seek the death penalty is properly considered a charging decision. State v. Bartholomew, 104 Wn.2d 844, 848-49, 710 P.2d 196 (1985); Dictado, 102 Wn.2d at 297-98. In contrast, a victim impact statement is not part of a charging decision. It is considered after the charging phase of a case is closed and the investigation is complete.

See Spokane Police Dep’t, 139 Wn.2d at 483-84 (Talmadge, J., concurring). Further, there is no statute similar to RCW 10.95.040(1) requiring the prosecutor to consider mitigation evidence in a noncapital case. ¶20 Victim advocates may send out victim impact statement forms to victims.

However, this action does not make a victim impact statement a part of a criminal investigation. ¶21 Moreover, defining “investigative records” to include all documents that may affect sentencing or penalty decisions regardless of whether they further a prosecutor’s investigatory function ignores the limited nature of the PRA’s exemptions. See PAWS II, 125 Wn.2d at 251, 258. In addition, that a document lies within a prosecutor’s file cannot transform a document into an investigative record.

Assuming a document in a prosecutor’s file can qualify as an investigative record, it must be part of an investigation that the prosecutor conducts. See, e.g., Pierce County Prosecutor’s Office, 111 Wn. App. at 508. ¶22 Because the victim impact statement is not part of a prosecutor’s investigation into criminal activity or alleged malfeasance, the investigative records exemption does not apply. SSOSA Evaluation ¶23 The county also argues that the SSOSA evaluation plays an important role in law enforcement.

It claims that the evaluation is an effective tool in plea negotiations and in rehabilitating sex offenders. The county is concerned that disclosure of SSOSA evaluations will discourage defendants from pursuing this sentencing alternative, to the detriment of community safety. ¶24 We do not doubt the value of SSOSA evaluations. Indeed, we have recognized that the legislature developed this sentencing alternative for first time offenders to prevent future crimes and protect society. State v. Young, 125 Wn.2d 688, 693, 888 P.2d 142 (1995).

However, while a SSOSA evaluation serves many important functions, the question we must decide is whether a SSOSA evaluation is “specific intelligence information” or a “specific investigative record.” ¶25 For largely the same reasons that a victim impact statement is not exempt under the investigative records exemption, a SSOSA evaluation also is not exempt. The evaluation is not prepared in an effort to “ ‘ferret out criminal activity’ ” or to “ ‘shed light on some other allegation of malfeasance.’ ” Dawson, 120 Wn.2d at 793 (quoting Columbian Publ’g Co., 36 Wn. App. at 31).

Instead, the evaluation is a useful tool after a criminal investigation has been conducted. A prosecutor may rely on a SSOSA evaluation to recommend a SSOSA sentence or discourage a court from imposing the sentencing alternative, but it is generally the defendant who requests a sentencing alternative and the judge who makes the decision.

While a prosecutor may make such a recommendation, he or she is not conducting an investigation but is merely taking the SSOSA evaluation into consideration while providing input to the court on a decision the court must make. ¶26 As with the victim impact statement, a prosecutor may, but need not, have a role in a SSOSA evaluation being prepared and subsequently used by the court. ROW 9.94A-.670(3). The evaluation is a requirement for consideration of a SSOSA alternative. ROW 9.94A.670(3). It is used by a sentencing court to determine whether a defendant charged with a sex offense is amenable to treatment. Id.

The evaluation also assists the court in determining whether the community will benefit from use of the SSOSA alternative, which requires treatment but allows for a reduced jail term. ROW 9.94A.670(4)-(5). ¶27 Although a prosecutor may bring a motion to order an examination, it is within the court’s discretion to determine whether to grant the motion. ROW 9.94A.670(3). The sentencing court also may order a SSOSA evaluation on its own motion. Id. Regardless of the prosecutor’s preference, the judge may then impose a SSOSA sentence. RCW 9.94A-.670(4).

As the SSOSA statutes make clear, the extent of a prosecutor’s participation in a SSOSA -evaluation differs greatly from the discretion exercised in deciding whether to file a notice of special proceedings. In the latter case, a mitigation package provides a prosecutor essential information necessary to decide whether a defendant will face the death penalty, a charging decision that the prosecutor must make after investigation. A SSOSA evaluation is not analogous.

The prosecutor here did not conduct the important investigation into Lerud’s capacity for treatment and the prosecutor did not make the determination as to whether treatment was ultimately appropriate. ¶28 A SSOSA evaluation is not an investigative record. ¶29 Because we conclude that neither a victim impact statement nor a SSOSA evaluation comes within the investigative records exemption, we do not consider whether these documents are essential to effective law enforcement or for the protection of any individual’s right to privacy.

CONCLUSION ¶30 When applying the investigatory records exemption, a court must find that an investigative entity is compiling and using the relevant record to perform an investigative function. RCW 42.56.240(1). It is not enough that a prosecutor consider a document or even that the document may be useful in making a sentencing recommendation to the court. A victim impact statement is primarily a communication between a victim and a judge and the SSOSA evaluation principally provides a basis for the court to impose sentencing alternatives. Const, art. I, § 35; RCW 7.69.030; RCW 9.94A.670(3)-(5).

Neither of these records is part of an investigation into criminal activity or an allegation of malfeasance. ¶31 Because the PRA requires that exemptions be narrowly construed, we decline to protect documents that are created to aid a court in its sentencing decision. We reverse the Court of Appeals decision that the victim impact statement is an investigative record and affirm its decision that a SSOSA evaluation is not. ¶32 Finally, we remand this matter to the trial court for an award of reasonable attorney fees, including fees on appeal, and penalties pursuant to RCW 42.56.550(4). C.

Johnson, Owens, Fairhurst, and Stephens, JJ., and Alexander, J. Pro Tem., concur. State v. Lerud, No. 00-1-00336-0 (Thurston County Super. Ct., Wash. 2000). At the time the former public disclosure provisions of

chapter 42.17 RCW (the public disclosure act) applied. Since 2005, public records requests have been governed by the PRA,

chapter 42.56 RCW. Since the relevant provision of the two statutes is the same, the PRA will be cited for ease of reference. The county also claimed the documents were exempt under the discovery rules exemption and the deliberative process exemption. These are not at issue in this case.

Although the decision to charge aggravated first degree murder and the decision to seek the death penalty occur at different times, the death penalty decision necessarily follows the decision to charge aggravated first degree murder, both decisions are made by the prosecutor at the beginning of a prosecution, and both result from a prosecutor’s investigation into the evidence. Justice Chambers claims the victim impact statement in this case “was created as a result of a specific investigation focusing on a particular party.” Dissent (Chambers, J.) at 852.

Yet, he fails to explain how the victim impact statement was part of an investigative, law enforcement, or penology agency’s investigation. Instead, he acknowledges that a victim impact statement factors into a court’s decision-making process at sentencing. Id. Similarly, Justice J.M. Johnson would adopt a “comprehensive view of a criminal investigation” and would find the “ ‘investigative’ ” requirement to be satisfied anytime a record is somehow connected to ascertaining an appropriate penalty. Dissent (J.M. Johnson, J.) at 856.

Because most everything a prosecutor does is connected in some respect to determining what, if any, penalty is appropriate in a given case, under his rule, a prosecutor generally need only put a record in his or her case file for it to be an investigative record. We recognize that a prosecutor may factor in the results of a SSOSA evaluation in negotiations with the defendant. However, to consider this negotiation as a part of the criminal investigation is an overbroad

interpretation of criminal investigation and contrary to the directive that exemptions in the PRA be narrowly construed. ROW 42.56.550(3).