Spokane mayor's beefcake cache is not a public record, but list of websites he visited is
Posted by Bruce Johnson
Spokane Mayor James E. West's laptop was the subject of an interesting Public Disclosure Act decision on Thursday.
West, a Republican who is now subject to a recall vote on Dec. 6 for these activities, apparently used his city-owned laptop to access gay.com and other gay-oriented websites, and also conduct internet chats with prospective dates.
The Spokane Spokesman-Review newspaper, which had exposed West's alleged abuses of office, including his offer of a City Hall internship to an 18-year-old man he met in a gay.com chat room, went to court under Washington's Public Disclosure Act ("PDA") to obtain copies of what was contained on West's laptop.
Judge Richard Miller of the Adams County Superior Court ordered logs of the websites that West visited to be released to the newspaper, but demurred at releasing the specific images that West or his computer had downloaded during these repeated visits. He expressed concern for third parties who he said could be identified by release of the 3,300 images that were left in temporary internet cache files when West used his city computer to visit the Gay.com site, apparently looking for dates. The judge did order the release of the mayor's "index of usage," which shows the dates and times that West used his city computer to access the internet and will include the addresses of web sites he visited, but the court ordered those portions of the web addresses revealing the individual profiles to be redacted before production to the newspaper. (West's hard drive included 3,300 photographs, including 100 pictures that were close-ups of male genitalia and 10 of simulated sex acts.)
As the Associated Press noted:
Judge Richard Miller ordered the release of an index showing the dates and times West used the computer to access Gay.com and other Web sites.But the judge said the Web addresses of member profiles West viewed on the site's dating service would be obscured, and images on the mayor's hard drive would not be released, to protect the privacy of third parties.
"Clearly the public has the right to evaluate the mayor's performance," Miller said. But, he added, releasing the pictures "could 'out' people without their permission."
Miller said the contents of West's city-owned laptop include about 3,300 images, including about 100 showing male genitalia or buttocks. Many of the images show the upper torso of shirtless men, Miller said.
The decision is one of the first in the United States to determine whether the contents of government-owned laptops used by government officials, including the computer's web cache contents, were private records or public records. The decision concludes that these are public records, but that that those portions of the records that would constitute an invasion of privacy to third parties, would not be released to the newspaper.
The decision, however, presents some interesting issues of access law. If the website information (including the photographs) would be available to anyone in the world accessing gay.com and similar sites, it is questionable whether anyone would have an invasion of privacy claim when his photograph, or other details, is made available to the Spokane newspaper. If you list all your details on gay.com, are you effectively "out" or not? Judge Miller concluded that these website participants were not "out", apparently.
Under Washington law, furthermore, public records are broadly defined, but contains certain exemptions relate to certain types of private records. RCW 42.17.310(1)(b) exempts "personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy."
In addition, "privacy" is invaded under the PDA "only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public." RCW 42.17.255. A court may not balance the interests of individuals against those of the public; to enjoin release a litigant must satisfy both prongs of the test. Brouillet v. Cowles Publ'g, 114 Wn.2d 788, 798, 791 P.2d 526 (1990).
The decision may not comport precisely with the terms of the PDA, but Judge Miller apparently sought to balance the right of the newspaper and the public to know what Mayor West was doing with his government laptop, but not to the extent of sharing naked torsos already splashed somewhere on the internet. To that extent, the Mayor's cache would be given precedence over the newspaper's (and the public's) right of access under the PDA because some of the photographs and identifying information, he determined, were entitled to claim the PDA privacy exemption.